Defending a Will against a Family Provision Claim in New South Wales
It’s not uncommon for Wills to be contested, particularly when a family member feels they’ve been left out or treated unfairly.
In New South Wales, the Succession Act 2006 (NSW) (the Succession Act) allows certain individuals to challenge a will if they believe they have not been adequately provided for. These challenges, known as Family Provision Claims, can be emotionally taxing and legally complex.
As an executor or beneficiary, understanding how to navigate and defend against a Family Provision claim is crucial to uphold the deceased's wishes and protect the estate's integrity.
Understanding Family Provision Claims
A Family Provision Claim is initiated when an eligible person asserts that the deceased's Will does not make adequate provision for them in the Will.
Who is an eligible person?
Under the Succession Act, certain people - such as spouses, de-facto partners, children, in some cases grandchildren, and some other dependants - can apply to the Supreme Court of NSW for provision from the estate (a share, or a greater share, of a deceased estate).
What’s required for a successful claim?
To succeed, the person bringing the claim must show that they’ve been left without adequate provision for their proper maintenance, education or advancement in life.
What’s considered when determining a claim?
Whether a claim is upheld depends on a number of factors, including:
- the relationship between the claimant and the deceased;
- the claimant’s financial circumstances;
- the size and nature of the estate;
- any obligations the deceased had to the claimant or other beneficiaries.
Can a Will be defended?
Yes. Just because a claim has been made, it does not mean the Court will automatically grant provision from the estate, altering the gifts under the Will.
If you are a named executor or beneficiary, it may be in your interests to defend the claim, particularly if the Will was made thoughtfully and fairly, or if there are limited estate funds to go around.
The executor’s role
As executor, your role is to uphold the Will and act in the best interests of the estate. You will need to remain neutral, especially if the dispute is between beneficiaries.
Steps for an executor to defend a Will being contested
Seek prompt legal advice
Engage a solicitor experienced in estate litigation to assess the claim's merits and advise on the best course of action. This can include assisting you to weigh up whether the claim should be resisted or negotiated. Early legal intervention can often lead to more favourable outcomes.
Important tips for the executor when there is a Family Provision Claim
- You should not distribute any part of the estate until the claim is resolved;
- Legal costs may be paid from the estate, even if the claim is unsuccessful;
- You may need to seek advice regarding protection from personal liability.
Other key considerations
Gather relevant documentation
Compile all pertinent documents, including the Will, financial statements, correspondence, and any notes that shed light on the deceased's intentions. This evidence can be pivotal in Court proceedings.
Evaluate the claim's merits
Assess whether the claimant is eligible and if their financial needs warrant further provision. Consider the estate's capacity to accommodate additional claims without disadvantaging other beneficiaries.
Consider mediation
If proceedings are commenced, the Court will require that the parties attempt to mediate the dispute in the hope that the dispute may be resolved amicably. Engaging in mediation can save time, reduce costs, and (in some cases) preserve family relationships.
Prepare for Court proceedings
If mediation fails, be prepared to defend the claim in Court. Your solicitor will help present evidence and arguments to uphold the Will's validity and the deceased's intentions.
Other key considerations
Time limits
Family Provision Claims must be filed within 12 months of the deceased's death. However, the Court may allow a claim being made after 12 months from the deceased's death in certain circumstances.
Costs
Legal expenses can be substantial. The Court may order the estate to cover costs, including the costs of the claimant, especially if the claim has merit. Conversely, frivolous claims may result in the claimant bearing the costs.
Conclusion
Defending a Will against a Family Provision Claim requires a strategic approach, balancing legal obligations with sensitivity to familial dynamics. Engaging experienced lawyers early can help navigate the complexities, uphold the deceased's wishes, and ensure a fair outcome for all parties involved.