Can an Adult Child Contest a Will in NSW?
Yes. In New South Wales, an adult child can contest a will by making a Family Provision Claim.
A child of the deceased is an “eligible person” under section 57 of the Succession Act 2006 (NSW). This includes adult children. However, being eligible to make a claim does not automatically mean the claim will succeed. The adult child must still show that the deceased failed to make adequate provision for their proper maintenance, education or advancement in life.
In practical terms, the Court will consider whether the provision made for the adult child was adequate, having regard to the size of the estate, the adult child’s financial circumstances, the relationship with the deceased, the competing claims of other beneficiaries and all other relevant circumstances.
What does “contesting a will” mean?
People often use the phrase “contesting a will” to describe different types of estate disputes.
In NSW, contesting a will usually refers to a family provision claim. This is where an eligible person accepts that the will may be legally valid, but says that they have not received adequate provision from the estate.
This is different from challenging the validity of a will, which involves arguing that the will itself is invalid. A will may be challenged on grounds such as lack of testamentary capacity, undue influence, fraud, suspicious circumstances or failure to comply with signing requirements.
An adult child may be able to bring a family provision claim even if the will is valid.
Do adult children have an automatic right to inherit?
No. Adult children do not have an automatic right to receive a fixed share of a parent’s estate.
A parent is generally free to make a will and decide how their estate should be distributed. However, that freedom is subject to the family provision provisions in the Succession Act 2006 (NSW).
The Court does not simply ask whether the will was unfair. It asks whether adequate provision has been made for the applicant’s proper maintenance, education or advancement in life. If adequate provision has not been made, the Court may make a family provision order from the estate or, in some cases, from notional estate.
This means an adult child can be eligible to claim, but the success and value of the claim will depend on the evidence.
What must an adult child prove?
An adult child usually needs to establish three main things.
First, they must show that they are an eligible person. A child of the deceased satisfies this requirement.
Secondly, they must show that the provision made for them was inadequate. This may be because they were left nothing, or because they were left an amount that does not adequately provide for them.
Thirdly, they must persuade the Court that further provision should be made and identify what provision is appropriate.
The Court’s task is not mathematical. There is no fixed percentage that an adult child receives. Each case depends on its own facts.
What factors does the Court consider?
Section 60 of the Succession Act 2006 (NSW) sets out a range of matters the Court may consider when deciding a family provision claim. These include the relationship between the applicant and the deceased, the size and nature of the estate, the applicant’s financial resources and needs, the needs of other beneficiaries, any disability, contributions made by the applicant, and any provision made by the deceased during their lifetime.
For an adult child, the most important issues often include:
- their financial need;
- their age and health;
- their income and earning capacity;
- their assets and liabilities;
- whether they own a home or rent;
- whether they have dependants;
- the size of the estate;
- the relationship with the deceased;
- whether there was estrangement;
- whether the adult child made contributions to the deceased or the estate;
- what other beneficiaries have received; and
- whether there are competing claims.
Financial need is often central
Financial need is one of the most important parts of many adult child claims.
An adult child who is financially secure may still be eligible to make a claim, but they may have more difficulty showing that further provision is required. On the other hand, an adult child who has limited income, insecure housing, health issues, debts, dependants or poor retirement prospects may have a stronger claim.
The Court may consider both present and future financial needs. For example, an adult child may currently be managing, but may have limited superannuation, poor health, insecure employment or no realistic ability to purchase a home.
The Court may also consider the financial circumstances of the adult child’s spouse or partner. This does not mean the partner is making the claim. It means the Court may take the household’s overall financial position into account.
Does being financially independent prevent a claim?
Not necessarily.
Many adult children are expected to be financially independent. However, that does not mean an adult child must be destitute before they can make a claim.
The question is whether adequate provision has been made for the applicant’s proper maintenance, education or advancement in life. This can involve more than bare necessities.
For example, depending on the size of the estate and the circumstances of the parties, provision may relate to housing security, debt reduction, medical expenses, or future care needs.
However, if an adult child has substantial assets, a strong income and no real financial need, the claim may be harder to justify, especially if other beneficiaries have stronger competing needs.
What if the adult child was left nothing?
An adult child can make a claim if they were left out of the will entirely.
Being excluded from the will does not guarantee success, but it is often the reason a claim is brought. The Court will examine why the adult child was excluded and whether the exclusion leaves them without adequate provision.
For example, the deceased may have left everything to a surviving spouse, to one child, to grandchildren, to charity or to another person. The Court will consider the deceased’s testamentary intentions, but it is not bound to follow them if adequate provision has not been made.
The Court must balance the adult child’s claim against the claims of the beneficiaries named in the will.
What if the adult child received something, but less than their siblings?
An adult child may still make a claim even if they received something under the will.
For example, a parent may leave one child 80% of the estate and another child 20%. Alternatively, a parent may leave one child a small cash gift and leave the rest of the estate to other beneficiaries.
Unequal treatment between siblings does not automatically mean the will can be successfully contested. Parents are not required to divide their estate equally between children. However, unequal treatment may be relevant, especially where the adult child who received less has greater financial need or made significant contributions to the deceased.
The issue is not simply whether the distribution is equal. The issue is whether the provision made for the adult child is adequate in the circumstances.
Does estrangement stop an adult child from contesting a will?
No. Estrangement does not automatically prevent an adult child from making a family provision claim.
Estrangement can be relevant, but it is not necessarily decisive. The Court may consider the reasons for the estrangement, who caused it, whether attempts were made to repair the relationship, and whether the estrangement should reduce or defeat the adult child’s claim.
For example, if the deceased caused or contributed to the estrangement, the estrangement may carry less weight. If the adult child was solely responsible for a long-standing breakdown and treated the deceased poorly, that may make the claim more difficult.
Even where estrangement exists, the Court may still consider the adult child’s financial need and the size of the estate. NSW family provision cases are highly fact-specific, and estrangement is weighed with all other circumstances.
What if the deceased said they did not want the adult child to receive anything?
A will sometimes includes a statement explaining why a child has been excluded. There may also be a separate document, letter or statutory declaration setting out the deceased’s reasons.
The Court can consider the deceased’s reasons. However, the deceased’s wishes are not always determinative.
If the reasons are accurate and supported by evidence, they may affect the claim. If the reasons are inaccurate, exaggerated or incomplete, the Court may give them less weight.
For example, a deceased person may say that an adult child was financially secure, when in fact that child was in financial difficulty. They may say there was no relationship, when the evidence shows that the adult child attempted reconciliation. They may say substantial lifetime provision was made, when the evidence does not support that.
The Court considers the evidence as a whole.
Do contributions matter?
Yes. Contributions can be important.
An adult child may have a stronger claim if they made significant contributions to the deceased or the estate. Contributions may be financial or non-financial.
Examples include:
- caring for the deceased;
- assisting with medical appointments;
- helping the deceased remain at home;
- maintaining or improving estate property;
- contributing money to the deceased’s expenses;
- working in a family business;
- providing emotional support;
- giving up work or opportunities to assist the deceased; or
- helping preserve estate assets.
A contribution does not have to be financial to matter. Care and support can be significant, particularly where it allowed the deceased to avoid or delay paid care.
What if one child cared for the parent and another did not?
This is a common issue in estate disputes.
If one child provided substantial care and support to the deceased, the Court may take that into account. That does not necessarily mean the caring child receives the whole estate, but it may justify greater provision.
On the other hand, a child who did not provide care is not automatically prevented from making a claim. The Court will still consider their financial needs, relationship with the deceased and the circumstances as a whole.
The Court’s role is to balance all relevant factors, not simply reward or punish family members.
Does the size of the estate matter?
Yes. The size of the estate is very important.
In a large estate, there may be enough assets to make further provision for an adult child without causing significant hardship to other beneficiaries. In a modest estate, the Court may be more limited.
For example, a claim by an adult child may be stronger where the estate is worth several million dollars and the other beneficiaries are financially secure.
The same claim may be more difficult where the estate consists mainly of a home needed by a surviving spouse or where the estate is modest and there are several competing claims.
What are competing claims?
Competing claims are the claims and needs of other people who have an interest in the estate.
These may include:
- a surviving spouse;
- a de facto partner;
- other children;
- dependent grandchildren;
- beneficiaries named in the will; or
- other eligible persons bringing claims.
The Court does not consider an adult child’s claim in isolation. It weighs that claim against the needs and entitlements of others.
This is particularly important where the estate is not large enough to satisfy everyone.
Can an adult child claim against superannuation?
Sometimes, but not always.
Superannuation does not automatically form part of the estate. It may pass directly to a nominated beneficiary or be paid at the discretion of the superannuation trustee.
However, in NSW, the concept of notional estate can sometimes be relevant. The Court has power in certain circumstances to designate property as notional estate, which may include property that does not otherwise form part of the deceased’s estate. The notional estate provisions are complex and are one of the distinctive features of NSW family provision law.
If significant wealth passed outside the estate, it is important to obtain advice about whether notional estate may be available.
Can an adult child contest a will after probate?
Yes, it may be possible to contest a will after probate has been granted.
A grant of probate confirms the authority of the executor to administer the estate. It does not necessarily prevent a family provision claim.
However, delay can create practical problems. If the estate has already been distributed, the dispute may become more complicated.
It is therefore important to act promptly.
What is the time limit for an adult child to contest a will?
In NSW, a family provision application must generally be made within 12 months from the date of death. The Court can allow an application outside that time if sufficient cause is shown, but an extension should not be assumed.
If you are an adult child considering a claim, you should obtain advice as early as possible. Waiting until after the estate has been distributed will make the claim more difficult.
What evidence does an adult child need?
Evidence is critical in a family provision claim.
An adult child will usually need evidence about:
- their relationship with the deceased;
- their financial position;
- their income and expenses;
- their assets and liabilities;
- their health;
- their housing needs;
- their superannuation;
- their dependants;
- any contributions made to the deceased;
- the size and nature of the estate;
- any lifetime gifts or financial support;
- the circumstances of other beneficiaries; and
- any reasons given by the deceased for the terms of the will.
The Court will usually require detailed financial disclosure. This may include bank statements, tax returns, payslips, Centrelink records, medical evidence, loan statements, superannuation statements and details of expenses.
Will the matter go to Court?
A family provision claim is commenced in Court, but many claims resolve before a final hearing.
In NSW, family provision matters are commonly referred to mediation. Mediation gives the parties an opportunity to resolve the dispute without the cost, delay and uncertainty of a final hearing.
Settlement may involve a lump sum payment, transfer of property, variation of gifts, provision for accommodation, payment of costs or other agreed terms.
A negotiated settlement can often provide certainty and avoid further damage to family relationships.
How much can an adult child receive?
There is no fixed amount.
The Court may award a modest sum, a substantial sum, a share of the estate, a property transfer, a life interest, a right of residence or another form of provision.
The amount depends on the evidence. Important factors include the adult child’s needs, the size of the estate, the needs of other beneficiaries and the strength of the relationship and contribution evidence.
For example, an adult child in financial hardship may receive meaningful provision from a large estate. However, a financially comfortable adult child claiming against a modest estate left to a needy surviving spouse may receive little or nothing.
Can a wealthy adult child contest a will?
Yes, a wealthy adult child is still eligible to make a claim. However, eligibility is not enough.
If an adult child has substantial wealth, strong income, secure housing and no significant financial need, it may be difficult to show that further provision is required.
That said, financial need is not the only factor. The Court may also consider matters such as contributions, relationship, the size of the estate and the deceased’s obligations. But in most cases, lack of financial need will make the claim significantly harder.
Can an adult child contest a will if there was no will?
Yes. If the deceased died without a valid will, the estate is distributed under the intestacy rules. An adult child may still make a family provision claim if the intestacy distribution does not make adequate provision for them.
Family provision claims are not limited to estates where there is a will. They can also arise where a person dies intestate.
Should an adult child contest a will?
That depends on the circumstances.
An adult child should consider:
- whether they are within the time limit;
- the size of the estate;
- whether there are assets outside the estate;
- their financial needs;
- the strength of their relationship with the deceased;
- whether there was estrangement;
- whether they made contributions;
- the needs of other beneficiaries;
- the likely legal costs; and
- the risks of litigation.
A family provision claim can be worthwhile in the right circumstances, but not every claim should be pursued.
Conclusion
An adult child can contest a will in NSW by making a family provision claim.
A child of the deceased is an eligible person under the Succession Act 2006 (NSW), but eligibility does not guarantee success. The Court will consider whether adequate provision was made for the adult child’s proper maintenance, education or advancement in life.
The strength of the claim will usually depend on the adult child’s financial needs, the size of the estate, the relationship with the deceased, any contributions made, the reasons for any estrangement and the competing claims of other beneficiaries.
If you are an adult child who has been left out of a will, or you believe you have not received adequate provision, it is important to seek legal advice early. The time limit in NSW is generally 12 months from the date of death, and delay can make a claim more difficult.
Call (02) 8066 9990 and send us an email at mail@pbritz.com.au to book a confidential case review with our director, Phillip Briffa.
