Contesting Wills – The Time has Changed

Laws changes relating to contesting Wills.

Chapter 3 of the Succession Act came into effect on 1 March 2009 and replaces the Family Provisions Act. It has introduced changes in respect of Court proceedings involving a contesting Wills. Previously an eligible person, being a person who could contest the Will of a deceased person had a period of 18 months from the date of death in which to commence proceedings seeking orders for provision out of the Will of the deceased. However, in respect of the estates of persons dying on or after 1 March 2009, a claim by an eligible person must be made within 12 months of the date of death.

Who can contest a Will?

Section 57 of the Succession Act details the category of persons who can contest a Will and has added a category being “a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death”.

For example, an unpaid live-in carer may now be a person eligible to make a claim in the estate of a deceased person if adequate provision has not been made for the carer, in the Will. Of course, the fact a person is an “eligible person”: under the legislation does not mean they will automatically succeed in proceedings to contest the Will.

To succeed, the carer must establish that he or she was living under the same roof as the deceased and also that he or she had a close personal relationship with the deceased. In addition, the carer must establish need. Other matters are also taken into consideration by the court before reaching a decision.

If a person has been left out of a Will and is an eligible person as defined in Section 57 of the Succession Act then he or she should seek legal advice as soon as possible after the date of death. If proceedings are not commenced within 1 year of the date of death, then the eligible person may miss the opportunity to make a claim.

Robert Lindsay is a partner at Mullane & Lindsay, and practises extensively in estate planning, contesting Wills and other commercial matters. We are available for consultations at our Tea Gardens office each Monday, Wednesday (by appointment) and Friday between 2:00 pm and 5:00 pm at 191 Myall Street Tea Gardens or at our Newcastle office at any other time during business hours (T: 4928 7300).