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September 5, 2017 |

The ‘rules’ for contesting a will in NSW (but not applicable to spouses or children contesting).

Spouses and children are a higher priority. A summary of the 2017 judge’s comments as follows, regarding what is required by applicants in will contest cases (other than spouse or child applicants).

The Court may make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: 

 (a) the person in whose favour the order is to be made is an eligible person, and

 (b) in the case of a person who is not a spouse or child having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and 

 (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. 

 The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. 

 The Court may have regard to the following matters;

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

(e) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

(f) the age of the applicant when the application is being considered,

(g) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(h) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

(i) the character and conduct of the applicant before and after the date of the death of the deceased person,

(j) the conduct of any other person before and after the date of the death of the deceased person,

(k)any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

With claimants other than spouses or children of the deceased they must show what is known as "factors warranting" which is something more than what spouses or children are required to do to be successful. Something special reason why provision should be granted to him or her.

Eric Butler

doyles Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

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