Disputing a Will: When can a person apply for provision out of an estate?

By Matthew Bridger and Jess Barker

If your relative, your partner or someone with whom you were in a close relationship has died and their Will should have provided something for you, you may be entitled to challenge the Will to claim your fair share from their estate.

When a person dies and leaves a Will that fails to make adequate provision for certain family members, those family member(s) (“eligible persons”) may be able to apply to the Supreme Court for provision out of the deceased person’s estate.

Importantly, even if the deceased person did not leave a valid Will, an eligible person may still apply to the Court to make an order for provision out of the estate.  When the Court grants an order it will operate as if such provision had been made in the deceased’s Will.

Both the ACT and NSW have laws that govern such applications.  The legislation is not limited to immediate family members, but also applies to other persons that had a close relationship with the deceased, such as a spouse, ex-spouse, or dependant member of the deceased person’s household.  You might be surprised at the types of relationships that make someone eligible to file a claim for provision under the relevant Acts.

A person may be eligible to make a claim for provision if:

  • They are the spouse of the deceased; or
  • They lived in a domestic relationship with the deceased; or
  • They are a child, stepchild, or grandchild of the deceased.

In the ACT, a parent of the deceased is also eligible to make a claim for provision if they were dependent on the deceased or if no partner or child survived the deceased person.  In NSW, the legislation also provides more broadly that any person may be able to make a claim if he or she was at any time wholly or partly dependent on the deceased and was at any time a member of the same household as the deceased.

If you fit into any of these categories contact Elringtons to seek legal advice about whether or not you might be eligible to lodge a claim under the relevant legislation.

In determining whether to make an order for family provision, the Court will look at whether adequate provision has been made for the proper maintenance, education or advancement in life of the family member or other applicant.  There is  also a range of other factors that the Court will take into account, including the nature and duration of the relationship between the applicant and the deceased; the character and conduct of the applicant; the financial situation of the applicant, and, in particular, any financial or non-financial contributions that the applicant made to the deceased during their lifetime.

In NSW an application for provision out of an estate must be made within twelve months of the death of the deceased person. In ACT the application must be made within six (6) months of the date when Probate was granted for the deceased person’s estate.

For more information or to make an appointment contact:  Kerin Cotchett

e: kcotchett@elringtons.com.au | p:  02 6206 1300