You've discovered that you're eligible to dispute a will someone has made. However, that doesn't necessarily mean you'll win the day. The Supreme Court of New South Wales will need to consider a wide range of factors to determine whether or not you've been adequately provided for by the deceased.
The following people are eligible to challenge a will:
- The deceased's spouse or ex-spouse.
- Anyone who can prove they were in a de facto relationship with the will-maker at the time of their death.
- The deceased's children. This includes children who are adopted or the product of a de facto relationship, among others.
- Anyone who was ever dependent (partially or wholly) on the deceased.
- The grandchildren of the will-maker, provided they were a member of the deceased's household at some point in their lives.
- Anyone who was living in "a close personal relationship" with the will-maker at the time of their death. This is defined as a partnership between two adults who live together and provide each other with "domestic support and personal care".
If you fall into one of these categories, there's a good chance the Supreme Court of New South Wales will deem you eligible to dispute a will.
Having said that, there are a number of factors that can potentially cause your order for provision to be refused, or the portion of the deceased's estate you receive to be diminished.
According to a research paper titled "Family Provision Claims under the Succession Act 2006 (New South Wales)", which was presented at the Bankstown and District Law Society Continuing Legal Education Seminar in March 2013, examples of "disentitling conduct" include desertion, adultery, mistreatment, or a history of violence or threatening behaviour.
Christopher Lawrence, the research paper's author, said it's quite uncommon for applicants to be "completely shut out" on these grounds - however, it does happen. In particular, "estrangement between child and parent is often an issue in family provision proceedings," explained Mr Lawrence.
In addition to this, if you wait more than 12 months to make a claim, you may not be permitted to lodge one. The Supreme Court of New South Wales may allow a claim to be made after a year has passed if "sufficient cause" can be given, but it's better not to hedge your bets.
If you need to challenge a will, get in touch with the estate lawyers at Craddock Murray Neumann today.