When preparing a Will, many people want to ensure their assets pass according to their wishes. However, in New South Wales, a Will can be challenged if an eligible person believes they have not been left adequate provision for their proper maintenance, education or advancement in life.
These claims are known as family provision claims and are governed by the Succession Act 2006 (NSW).
Spouses and de facto partners are generally among the strongest applicants in family provision proceedings because the law recognises that a deceased person usually has an ongoing responsibility to provide for their partner.
This article explains when a spouse may contest a Will, how the Court approaches these claims and the factors that influence the outcome.
Can a Spouse Contest a Will?
Yes. In NSW, a surviving spouse or de facto partner can apply to the Court for further provision from a deceased estate if they believe the Will, or the laws of intestacy, do not adequately provide for their proper maintenance, education or advancement in life.
If the Court determines that adequate provision has not been made, it may order that the estate be redistributed to make further provision for the applicant.
Every case depends on its own facts, and there is no automatic entitlement to receive a larger share of the estate.
Who Can Make a Family Provision Claim?
Under the Succession Act 2006 (NSW), several categories of people may be eligible to contest a Will, including:
- A husband, wife or de facto partner of the deceased;
- A child of the deceased, regardless of age;
- A former spouse in certain circumstances;
- A person who was wholly or partly dependent on the deceased; and
- A person living in a close personal relationship with the deceased immediately before death.
Simply being an eligible person does not guarantee success. The applicant must also demonstrate that adequate provision has not been made for them.
Does a Spouse Have Priority?
In many cases, a surviving spouse or long-term de facto partner will have one of the strongest claims against a deceased estate.
The Court generally recognises that spouses owe one another mutual responsibilities during their relationship. Where a marriage or de facto relationship has been lengthy and supportive, the Court often expects reasonable financial provision to continue after death, provided the estate is capable of meeting those needs.
This does not mean a spouse will automatically inherit the entire estate. Instead, the Court balances the spouse’s needs against those of other eligible beneficiaries.
How Does the Court Decide?
When determining a family provision claim, the Court considers a wide range of factors, including:
- The nature and length of the relationship with the deceased;
- The financial resources and needs of the applicant;
- The applicant’s age and health;
- The size and nature of the deceased estate;
- The competing financial needs of other beneficiaries;
- Any contributions made by the applicant to the deceased’s welfare or estate; and
- Any other circumstances the Court considers relevant.
Rather than applying a fixed formula, the Court assesses each matter individually to determine whether the Will makes adequate provision in the circumstances.
Is a Right to Live in the Home Enough?
Some Wills give a surviving spouse a right of residence instead of transferring ownership of the family home.
A right of residence allows the spouse to occupy the property for life, after which ownership passes to another beneficiary, often children from an earlier relationship.
While this arrangement may be appropriate in some families, it is not always sufficient.
If the surviving spouse later needs to move because of illness, age or financial circumstances, they may lose the benefit of the arrangement without having sufficient funds to secure alternative accommodation.
Conversely, leaving the property outright to the spouse may mean that, if the spouse dies shortly afterwards, the property ultimately passes to people the deceased never intended to benefit.
The Court aims to strike an appropriate balance between protecting the surviving spouse and respecting the deceased’s testamentary wishes.
How the Court Balances Competing Claims
Many family provision claims involve competing interests between a surviving spouse and children from an earlier relationship.
These matters can be particularly complex because the Court must consider the financial circumstances and future needs of each claimant.
Although a current spouse will often have a strong claim, adult children, former spouses and other eligible persons may also receive provision where appropriate.
Ultimately, the Court seeks to achieve a fair outcome after considering all relevant circumstances rather than simply dividing the estate equally.
Australian courts have consistently recognised that a deceased person owes an important moral responsibility to adequately provide for their surviving spouse where the estate permits. However, that responsibility must still be balanced against competing claims and the overall size of the estate.
Reducing the Risk of a Will Dispute
While no Will can completely prevent a family provision claim, careful estate planning can reduce the likelihood of future disputes.
Obtaining legal advice when preparing or updating your Will and estate plan can help ensure your wishes are properly documented and your family circumstances are carefully considered.
If you are concerned about a potential Will dispute or believe you have not been adequately provided for, obtaining advice early is important, as strict time limits may apply to family provision claims.
Get Advice About Contesting a Will
Family provision claims can involve complex legal and financial issues, particularly where blended families, second marriages or competing beneficiaries are involved.
Our experienced wills and estates lawyers can advise you about your rights, assess the strength of a potential claim and assist with resolving estate disputes.
If you need advice about contesting a Will or defending a family provision claim, contact Somerville Laundry Lomax to discuss your circumstances.
This article provides general information only and is not intended to be legal advice. You should obtain professional advice relevant to your circumstances.