What Does It Mean to Be Left Out of a Will?
Being left out of a will simply means you have not been named as a beneficiary, or you have received only a very small or token gift. Both situations may allow you to contest a will pursuant to section 58 of the Succession Act 2006 (NSW).
Who Can Contest a Will in NSW?
Pursuant to section 57 of the Succession Act 2006 (NSW), certain categories of people are eligible to contest a will in NSW. This includes:
- A spouse
- A de facto partner
- A child (biological or adopted)
- A former spouse
- A grandchild who was dependent on the deceased
- A person who lived with and was dependent on the deceased
- A person in a close personal relationship with the deceased
What Is Adequate Provision?
When someone is left out of a will, the Supreme Court does not try to rewrite the will or decide what is “fair” in a general sense. Instead, the Court asks a specific question. Has the will provided adequate and proper provision for your maintenance, education and advancement in life? This is the central test in a family provision claim.
To answer this, the Court considers a wide range of factors. These usually include your financial position, your age, your health, your earning capacity and your ongoing needs. The Court will compare these needs against the size and nature of the estate. A modest estate may limit what can realistically be provided. A large estate may create a greater expectation that proper provision should be made for an eligible person who has genuine financial needs.
The Court also looks at the nature of your relationship with the deceased, any contributions you made to the deceased during their lifetime and any promises or expectations that were created. All of these elements help the Court decide whether the will made appropriate provision for you based on your circumstances and the overall context of the estate.
Does It Matter Why I Was Left Out?
Yes. The reasons behind your exclusion can play an important role in a family provision claim. The Supreme Court will look at the overall relationship between you and the deceased and will consider any explanation that appears in the will, in supporting documents or in the evidence. Sometimes a person is excluded because of family conflict, misunderstandings or a belief that the excluded person is financially comfortable. In other cases, the will may be based on outdated information, or the deceased may not have fully understood your circumstances at the time the will was made.
If the deceased left a written explanation, such as a letter or statement of wishes, the Court may take it into account. However, these explanations are not binding. The Court still needs to decide whether adequate provision has been made based on your actual needs and the overall circumstances. Evidence such as family history, medical records, financial information and statements from other relatives can help the Court understand the context of the exclusion.
Even where there has been a period of estrangement or limited contact, this does not automatically defeat a claim. The Court examines why the estrangement occurred, whether either party attempted to repair the relationship and whether the reasons for the breakdown were reasonable in the circumstances. The aim is to understand the full picture, not just the final state of the relationship.
What Evidence Do I Need?
Evidence is one of the most important parts of any family provision claim. The Court must understand your personal circumstances, your financial needs and the broader context of the estate in order to decide whether proper provision has been made for you. Gathering the right evidence early can significantly strengthen your case.
You will usually need to provide detailed information about your financial position, including your income, expenses, assets, liabilities and future financial needs. This helps the Court see your day to day reality and whether you require support from the estate. If you have health issues or disabilities that affect your ability to work or care for yourself, medical records and health reports are also important.
The Court will also consider the relationship between you and the deceased. This may involve providing information about your upbringing, your involvement in each other’s lives, any periods of estrangement and any support or contributions you made during their lifetime. Documents such as letters, photographs, text messages or emails can assist the Court in understanding the nature of the relationship.
Another key part of the evidence relates to the estate itself. This includes details about the assets, liabilities, property valuations, superannuation balances, trusts and any transactions that may be relevant. Executors usually provide this information, but sometimes it needs to be requested or obtained from third parties.
All of this material is brought together in a formal document known as an affidavit. This is your sworn evidence and it forms the backbone of your case. Your affidavit tells your story, explains your needs and places your claim in the proper legal context. The quality and completeness of this document often have a major impact on the strength of your claim and the prospects of a favourable outcome.
What Is the Process for Contesting a Will?
Most matters follow a similar pathway as summarised below:
- Obtain legal advice: In NSW, you usually have 12 months from the date of death to file a claim. Early advice ensures your eligibility is assessed, important evidence is preserved and the estate is not distributed before your claim is lodged.
- Prepare evidence: Your solicitor will help you collect documents showing your income, expenses, assets, liabilities, health issues, relationship history and other relevant information. This material will form the basis of your affidavit, which is the central piece of evidence in your case.
- File claim in the Supreme Court of NSW: A formal application called a family provision claim is filed with the Court. The executor is notified and required to provide details about the estate, including asset values and financial documents.
- Attend compulsory mediation ordered by the Court: Mediation is a confidential meeting where the parties attempt to negotiate a settlement with the help of an independent mediator. Most claims are resolved at this stage because it avoids the cost, delay and uncertainty of a hearing.
- Proceed to a hearing if the matter does not resolve: If settlement cannot be reached, the case goes before a judge who will hear evidence and make a final decision. The judge will determine whether you should receive provision and, if so, how much
How Long Do I Have to Make a Claim?
In NSW, the general time limit for bringing a family provision claim is 12 months from the date of death. This deadline is strict, and missing it can make a claim significantly more difficult. The Court does have the power to allow a late application, but only in limited situations, such as where there was no real opportunity to bring the claim earlier or where the delay was caused by circumstances outside your control. Even then, permission is not guaranteed.
For this reason, it is important to seek advice as soon as you become aware that you may not have been provided for, or that you have been left out of a will entirely. Early advice allows your solicitor to protect your position, gather the necessary information and ensure the claim is filed within time so that your rights are not lost.
Will I Have to Go to Court?
Most people do not need to physically appear in a courtroom. The majority of family provision cases resolve at mediation, which is a structured negotiation hosted by an independent mediator. Mediation is confidential, less formal and often far more cost effective than a court hearing. It allows the parties to explore settlement options and reach an agreement without the stress of giving evidence in court.
A hearing only occurs if the matter cannot be resolved at mediation or through negotiations between the parties. At a hearing, a judge will consider all the evidence, listen to submissions and make a final decision about whether provision should be made. While hearings are more formal, your lawyer will guide you through the process at every stage.
What Happens If I Win My Case?
If your claim is successful, the Court will make an order for provision from the estate. This may take the form of a lump sum, a percentage of the estate or another arrangement that reflects your needs and circumstances. The amount awarded depends on factors such as the size of the estate, your financial position, your relationship with the deceased and the competing claims of other beneficiaries.
Once the Court makes its orders, the executor is responsible for carrying them out. This may involve transferring funds, selling or reallocating assets or adjusting distributions among beneficiaries. In many cases, costs associated with the claim are also dealt with at this stage, and the estate will often contribute to the legal costs of a successful claimant.
Need Help With Your Case?
Are you wanting to contest a Will? If so, call us on (02) 8066 9990 or send us an email at mail@pbritz.com.au to obtain a free case assessment.
