You can contest a will if you believe its terms do not treat you fairly. Perhaps you have not received what you believe to be a fair share of the deceased person’s estate or you have been completely omitted from the will. Although the deceased person may have purposely left you with this share or excluded you entirely, if you are considered an eligible person you can apply to the court for a family provision order.
Pursuant to s 57 of the Succession Act 2006 (NSW), an eligible person includes:
- Spouse of the deceased at time of death;
- De facto partner of the deceased at time of death;
- Note: de facto relationship is defined in s 21C of the Interpretation Act 1987
- Child of the deceased;
- Including an adopted child, a child born as a result of sexual relations, and a presumed child in a de facto relationship
- Former spouse of the deceased;
- Person who at any time was dependent on the deceased person and is a grandchild or member of the household; and
- Person living in a close personal relationship with the deceased.
Therefore, as a child of the decease you are included as an eligible person.
Pursuant to s 59(2), the Court may make an order for provision out of the estate of the deceased person for the maintenance, education or advancement of you as the eligible person.
In making a family provision order, pursuant to s 60(2) the court will consider matters including:
- Relationship between yourself and the deceased person including the nature and duration of the relationship;
- The nature and extent of responsibility owed by the deceased person to you;
- Nature and extent of the deceased person’s estate;
- Your financial resources and needs;
- Your cohabitation;
- Any disability you may have;
- Your age;
- Your contribution to the acquisition, conservation and improvement of the estate of the deceased person or the welfare of them; and
- Many other matters contained in s 60(2).
Note that a family provision claim must be commenced within 12 months from the date of death. If the date of death is uncertain, the Court will determine a reasonable time of death.