The Token Gift

It is a common myth that if you give someone a small amount of money in your Will, then they cannot contest your will when you die. This myth is not true.

The Law on Contesting an Estate in New South Wales

In New South Wales, Chapter 3 of the Succession Act NSW permits certain classes of people (called an ‘eligible person’) to apply to the court for a Family Provision Order, colloquially known as contesting an estate. If the court makes such an Order, it has the effect of amending the will (or intestacy rules) to include additional clauses or gifts, as if the deceased person had included it in their original will in the first place. This type of application is concerned about whether adequate provision was made for the proper maintenance, education, or advancement in life of the person contesting the estate.

The question asked by the court is not whether an eligible person received anything in the will, rather whether the person claiming received enough of an inheritance in the circumstances. Leaving them a small sum of money does not defeat the claim; the court may simply say it was not enough!

There is no set amount of money which is considered to be “enough”; it entirely depends on the circumstances at the time, what might be in the estate, and the circumstances of all the people involved.

How do I contest an Estate?

An eligible person makes this type of claim by lodging an application with the relevant Court within 12 months from the date of death of the deceased. If they apply after that date, they need special permission from the court to make this type of claim.

Who can contest an Estate in New South Wales?

To be an eligible person, Section 57 of the Succession Act NSW says you must be:

• A person who was the spouse of the deceased person at the time of the deceased person’s death.
• A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death.
• A child of the deceased person.
• A former spouse of the deceased person.
• A person who was, at any particular time, wholly or partly dependent on the deceased person and who is a grandchild of the deceased person or was a member of the household of which the deceased person was a member.
• A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Get legal advice, early.

If you are making your Will, it is good to think about the possibility of your estate being contested. You can discuss your options and concerns with a lawyer at our office at the time of discussing your Will.

If you are an executor of the Estate facing a possible claim, or if you are thinking about lodging a claim for Family Provision, it is important to get legal advice early. Cater & Blumer can help you navigate Family Provision claims.

                                                                          Sarah Cuteri, Senior Solicitor Cater & Blumer