Certain people, known as ‘eligible persons’ can make a claim for provision from an estate if they are either left out or not adequately provided for. These claims are known as family provision claims. Some eligible persons are the spouse the deceased (married or de facto), children of the deceased and step children who have lived in the same household as the deceased at some time and been dependent upon the deceased at some time. There are a number of different factors taken into account by the Court when deciding what provision a claimant should receive, but one of the main factors is the financial circumstances of the claimant, and their need to receive provision or further provision from the estate. You can read more about different categories of eligible persons and the factors taken into account in our family provision information sheet here.
In NSW an eligible person has 12 months from the date of death to lodge a family provision claim in Court. It’s possible to seek an extension of time, but the Court will only extend time if there is sufficient reason for the delay in bringing the claim. You can’t assume that an extension of time will be granted.
Although there is twelve months from the date of death to lodge a claim in Court to contest a Will, if a person is considering contesting a Will, its best to seek legal advice early rather than waiting until the time limit is close. This can of course be difficult in a time of grief, but its important for a potential claimant to ensure their rights are protected. In particular, action needs to be taken before the executor has a chance to distribute the estate to the beneficiaries. Distribution can happen well within the 12 month period. If the estate is distributed before the claimant has notified the executor of their intention to make a claim, or before the claim has been dealt with, this can make things more difficult for the claimant, particularly if the beneficiaries have already begun to spend the money or use the assets distributed to them.
The length of time it takes to contest a Will from start to finish can vary significantly (anything from a few months to a couple of years) depending upon a few things including how straightforward or complex the matter is, and whether the parties are willing to enter negotiations early in an attempt to settle the matter. Some of the steps involved in a claim are as follows:
- the claimant notifies the executor (usually through their solicitor) of the intention to make a claim, and seeks an undertaking that the executor will not distribute the estate until the claim is finalised
- if both parties are willing to enter into negotiations to resolve the matter early, the matter may settle before court proceedings are commenced. If a settlement can be reached at this stage a formal agreement is drawn up to protect all parties
- if the matter cannot be resolved then court proceedings are commenced by filing a summons and an affidavit in Court setting out the evidence in support of the claim, which is served upon the executor
- over the following weeks or months the executor and the beneficiaries have an opportunity to prepare and serve their evidence in defence of the claim
- the parties then participate in a mediation or settlement conference to see if the matter can be resolved without having to proceed to a final Court hearing, This step is compulsory and many matters are resolved at this stage
- if the matter does not settle at the the mediation or settlement conference, then the parties need to prepare for a final hearing before a Judge. Some cases, although failing to settle at the mediation stage, may settle prior to the final hearing. A final hearing might take one day, or it might take a few days. The Judge hears all of the relevant evidence and then decides whether the claimant should receive provision, or further provision, and in what amount. The Judge also decides how the costs of the parties to the proceedings will be paid
The above is a general outline of the process, and there may be many more steps involved depending on the circumstances of the case.
Although going to Court is never a pleasant experience, having an understanding of what is involved and having someone experienced to guide you through can make the whole process less daunting.
If you want to know whether you may be entitled to make a claim against an estate please call our Wills and Estates team on 02 4929 3995 for an obligation free assessment. In many cases we are able to act for claimants on a no win no fee basis, subject to conditions that we can discuss.
The information presented here is specific to NSW. Where an estate has assets outside of NSW or deceased resided outside of NSW different laws (and different time limits) may apply.