CONTESTING A WILL

Making a claim for provision from an estate pursuant to the Family Provision Act (NSW):

A deceased person (testator) is entitled to leave his/her property (deceased estate) to whoever he/she wishes. However, the law in Australia provides a limited opportunity (depending upon their circumstances) for certain persons to apply to a Court for an order for provision from the deceased's estate (sometimes referred to as a Family Provision Act or F.P.A. claim).

Persons eligible to apply to "contest" a will generally include:

• A surviving husband or wife, including a de facto husband or wife or partner, of the deceased person.
• Children of the deceased person, including adopted children.
• Persons who were financially dependant upon the deceased person and part of the household of the deceased, including grandchildren
• Grandchildren, if they were part of the deceased's household.

When is the claim on a deceased estate made?

The application should be made fairly soon after death, and before estate assets are distributed. In N.S.W. the period is 18 months after death, it varies in other states of Australia.

Legal Costs in Challenging a Will

If successful, and depending upon the size of the estate, most of the applicant's legal costs are generally paid from the deceased estate.

Defending a Family Provision Act claim if you are an executor

It is the duty of the executor of a deceased estate to uphold the last will and testament.

The law recognizes the right of a deceased person to dispose of property as they wish. It is the duty of the executor nominated under the will to uphold the will, but subject to any reasonable claims for provision made by eligible persons (see above).

Challenging or Contesting a Will

A will must conform to certain requirements. It must be the deceased person's last will and not some other document made by the deceased. The deceased person must be of sound mind (have "testamentary capacity") when the will was made. There may be many reasons a document put forward as a will is not accepted as valid.

Informal wills

In New South Wales, certain documents (writings) of the deceased that did not conform with earlier formal requirements for a will, have been accepted by the Supreme Court as legal wills (see below, Will Cases in which Kim Morrissey has appeared).

Read more commonly asked questions in relation to challenging a will here.

In N.S.W., matters relating to deceased estates are generally determined in the Supreme Court of N.S.W., in Sydney.

SOME WILL CASES IN WHICH KIM MORRISSEY HAS APPEARED

• My client lived in the United Kingdom and was prevented by a medical condition from traveling to Australia. Her father died leaving the whole of his very substantial deceased estate to his second wife without making any provision for my client, although he had a good relationship with her.
  Proceedings were commenced in N.S.W. in Sydney and eventually settled on a very satisfactory basis for my client after an international mediation via video link, with London.
  
• My client was left the whole of his mother's estate by her will. However, before she died, she transferred the whole of that estate to her nephew. My client was successful in the Supreme Court of NSW in a claim for the share of the estate.
• My client's brother left an estate valued at several million dollars to a nephew in circumstances where there was credible medical evidence that at the time the brother made the will, he lacked testamentary capacity. She brought proceedings in the Supreme Court of NSW, seeking to have the grant of probate to the nephew, revoked, and an earlier will upheld.
• My clients (2 brothers) were left a half share each by their father, of an estate of an estimated value of $5m. However, a young woman who was employed by the father as a housekeeper, produced a more recent document after his death, which she claimed was an informal will of the father, leaving the whole of the estate to her. "
• My female client had a long and intimate relationship with a gentleman who was divorced from his wife. They spent much time together in his home. The gentleman promised to provide for her in his will, and shortly after that he suffered a heart attack in my client's presence, from which he eventually died. He left the whole of his estate valued in excess of $1m to his adult children. Proceedings commenced by her in the Supreme Court of N.S.W. were settled to her advantage after a mediation involving members of the gentleman's family.
• My clients were the executors of a formal will prepared by a solicitor, of a well known Australian artist. Before his death, the artist wrote an number of informal documents which he left in his studio. The Supreme Court held that one of the documents was his will, and not the earlier formal will, drafted by the solicitor.
• My client was left only the right to occupy the former matrimonial home, and a share of the proceeds if she left, by her husband in his will, after a very long and devoted marital relationship. Proceedings commenced by her in the Supreme Court were settled to her advantage after a mediation involving adult children of her late husband's first marriage.

These pages are intended to be a resource for lawyers and laypersons. Any content on these pages is not intended to be, nor is it a substitute for, legal advice. If you have a problem, and the resources here do not direct you to where you need to go, see a lawyer. It is intended that this page will contain only resources, not legal advice of any kind.