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Legally Challenging a Valid Will

At the outset it must be stated that not just anyone can challenge the distribution of the estate of a deceased person who has made a valid will. In New South Wales the only a so called eligible person may challenge a valid will. An eligible person is defined in Part 3.2 of the Succession Act 2006 and is outlined below. An understanding of what is involved in contesting a valid will in New South Wales can be gleaned from a reading of the relevant legislative provisions and key cases in the area. This article brings the legislation and case law together and points you in the right direction to explore further should you wish.

Reasons for challenging a valid will

Some people may have a principled objection to the state interfering with the testamentary wishes of an individual, but the rude fact is that the laws of the forum wherever you made your will, and wherever the property is located, are going to govern how the will and property are treated. In New South Wales, and many other jurisdictions, the underlying reason usually given (and widely accepted in New South Wales at least) for having provisions allowing for the distribution of a deceased estate that may be contrary to express testamentary intentions is essentially to make sure that adequate, or proper provision is made for certain prescribed persons (generally relatives, dependents or close personal friends - "the eligible person"), irrespective of whether or not there is a will in which the eligible person may or may not mentioned.

It may be discerned in the above that the underlying reasons are moral ones. This was explicitly dealt with by the High Court in Vigolo v Bostin (2005) 221 CLR 191, where Callinan and Heydon JJ, said:

We would not be reluctant, at least in some cases, to use the expressions "moral duty" and "moral obligation", and to apply the concepts underlying them, which include the idea of "moral claims". It seems to us that there are several material indications in the Act that moral considerations may be relevant. But before we refer to those indications we should make it clear that a moral claim cannot be a claim founded upon considerations not contemplated by the Act. Nor can it be a claim based simply upon the fact of a preference shown by a testator in his Will for another or others, although there may be cases in which disparities in dispositions may be relevant.

Of course there is also the policy reason of avoiding additional and unwarranted expense to the state. Why should state be expected to financially provide for certain persons who could otherwise have been adequately provided for by someone with whom they had close or dependent relationship?

Eligible Persons

The following are eligible persons who may apply to court for a family provision order in respect of the estate of a deceased person:

  • a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
  • a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
  • a child of the deceased person,
  • a former wife or husband of the deceased person,
  • a person:
    • who was, at any particular time, wholly or partly dependent on the deceased person, and
    • who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
  • a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
  • ("De facto relationship" is defined in section 21C of the Interpretation Act 1987. And "domestic relationship" has the same meaning as it has in the Property (Relationships) Act 1984.)

The process and the requirements that must be considered and satisfied

The Succession Act requires that an application for a family provision order is brought within 12 months of the death, although the court may extend this period if it is persuaded that there are sufficient grounds for making such an order. An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.

Eligible persons who are former spouses, dependent grandchildren or dependent members of a household with the deceased or a person in a close personal relationship with the deceased face an additional jurisdictional hurdle. These applicants must also establish that there are factors which warrant the making of the application: s 59(1)(b). Once the threshold issues have been positively decided, the court must then determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life: s 59(1)(c)). If the court finds in favour of the applicant on this ground it must then decide what provision ought to be made out of the deceased’s estate for the applicant: s 59(2).

The precursor to the Succession Act contained the same requirements, thus the established case law continues to apply. Unlike the former act, section 60 of the Succession Act prescribes an extensive, but non-exhaustive list of the factors the court should have regard to before making a family provision order. Section 60 is reproduced in full below.

  1. The court may have regard to the matters set out in subsection (2) for the purpose of determining:
    1. whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and
    2. whether to make a family provision order and the nature of any such order.
  2. The following matters may be considered by the court:
    1. any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
    2. the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
    3. the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
    4. the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
    5. if the applicant is cohabiting with another person—the financial circumstances of the other person,
    6. any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
    7. the age of the applicant when the application is being considered,
    8. any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
    9. any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
    10. any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
    11. whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
    12. whether any other person is liable to support the applicant,
    13. the character and conduct of the applicant before and after the date of the death of the deceased person,
    14. the conduct of any other person before and after the date of the death of the deceased person,
    15. any relevant Aboriginal or Torres Strait Islander customary law,
    16. any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

In the first case to decide a matter under the family provision part of the Succession Act the above factors were discussed and it was affirmed that the established case law is still of relevance. In Hulme v Graham [2010] NSWSC 1281 Hallen AsJ observed the following:

The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40.
58 It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.
59 Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant.
60 Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased’s will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
61 Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.
62 This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (No 2) (at 209-210):
"… The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."
63 And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231):
"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

The costs implications of bringing an application for an order under the family provisions contesting the distribution of a will are contained in s 99 of the Succession Act. It provides, "The court may order that the costs of proceedings under Ch 3 in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both the estate and notional estate, in such manner as the court thinks fit." In other words the costs of a successful application for an order are generally paid out of the estate, but this is not guaranteed as the court may order the payment of costs as it sees fit.



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There are a number of steps that can be taken to make a will less susceptible to being overturned or amended by a court if challenged. Whilst there are no guarantees, we can certainly assist in making it much more likely that effect is given to the will maker's desires.

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