Deceased Estates & Contesting Wills

Higgins Lawyers Blue Mountains


When a person dies their assets become their estate. We can assist with estate management and contesting wills.

What happens if a will isn’t in place?

A person who dies without having made a valid Will is said to have died intestate.

The Succession Act has brought about a significant change to previous intestacy law. The significant change is that when a person dies intestate, the preferred person entitled to receive his or her estate is the intestate’s spouse. If there are no persons entitled, the estate passes to the State as bona vacantia (that is, property which does not have an owner).

The Succession Act has expanded the definition of “spouse” to include a person who was in a domestic partnership immediately before the intestate’s death.

The order in which person’s entitled share in the deceased’s estate depends upon them surviving the deceased by 30 days. It should however be noted the expression “domestic partnership” includes a “de facto relationship”. Under the Succession Act, this means that persons who were in a “domestic relationship” for a continuous period of not less than 2 years immediately prior to death, or resulted in the birth of a child, are defined in the Succession Act as a spouse.

The area of change in the law that seems to create the most controversy is the situation where a deceased person has in fact left a will which fulfills all the legal requirements for a binding will but someone in the family of the deceased believes that they have not been left a sufficient share of the estate. This is where a claim under the Family Provision section of the Succession Act comes into consideration.

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Family provision claims under the Succession Act 2006

The Succesion Act 2006 enables the:

  • husband or wife of the deceased;
  • child of the deceased;
  • de facto spouse with whom the deceased was living at the time of death;
    former spouse of the deceased;
  • grandchild of the deceased who was wholly or partly dependent upon the deceased at sometime during the lifetime of the deceased person;
  • any other person who was wholly or partly dependent upon the deceased at sometime during the lifetime of the deceased person and was a member of the deceased’s household; and
  • any person with whom the deceased was living in a close relationship at the time of death.

To apply to the Court for an order making adequate provision for their maintenance, eduction or advancement. Any entitlement to be provided for is calculated as at the date of hearing of the application, based on their needs and circumstances at that time.

The Court needs to be made aware of the applicant’s relationship to the deceased and to the existing beneficiaries, the circumstances giving rise to the applicant’s claim for relief and the comparative claims of the existing beneficiaries as well as particulars of any acknowledgment by the deceased as to the applicant claims on the deceased’s bounty.

Is there a time limit to make a Family Provision Claim?

Yes – the period within which a claim is required to be made is 12 months from the date of death of the deceased. The time can be extended if sufficient cause for the delay can be established and provided the beneficiaries under the will would not be unacceptably prejudiced by such extension and depending on whether there has been any unconscionable conduct on either side which is relevant to the claim.

How do you determine that a person can claim as a 'de facto' spouse?

The person has to establish to the satisfaction of the Court that he or she was living with the deceased at the date of death as the spouse of the deceased on a bona fona fide domestic basis. The definition is not restricted to heterosexual couples. Points that the Court takes into consideration in deciding whether a “bona fide domestic” relationship exists are essentially taken from section 4 of the Property (Relationships) Act 1984 and include:

  • conduct in the manner of husband and wife
  • sexual relationship
  • joint parents of a child
  • the exclusiveness of their living arrangements and sexual activity
  • permanence of the relationship
  • pooling their resources
  • sharing their expenses
  • carrying on a joint social life
  • a subjective belief in their relationship being akin to that of husband and wife
  • the legal right to enforce each other’s obligations.
What are the rights of a former spouse?

Apart from establishing the existence of the married relationship the former spouse will need to establish factors warranting a claim and need. Points that the Court will take into consideration include:

  • Where a spouse has died after divorce but before property orders have been made by the Family Court
  • Where the husband and wife have not settled all their property dealing at the time of death
  • Where maintenance being paid to a former spouse is inadequate for his/her provision after the death of the paying ex-spouse.
  • Where after divorce the deceased ex-spouse was, because of special circumstances or a residue of affection, providing money for the former spouse’s medical treatment or living expenses.

It should also be noted that under s.15A of the Wills, Probate & Administration Act 1898, a final divorce decree (a decree of dissolution of marriage or of nullity) revokes any gift by the deceased’s will to a former spouse and any appointment of the former spouse as Executor and Trustee or otherwise. The only exception is where there is a specific provision in the will saving the gift or a subsequent writing by the deceased confirming the gift and/or such appointment. In the absence of any such provision or subsequent confirmation, the former spouse will not receive anything under the will in respect of the deceased’s NSW property and his or her entitlment (if any) will depend on the ability to make a successful family provision claim.

What about other dependents?

Apart from the need to establish a claim and need at the date of hearing any such applicants must have been wholly or partly dependent upon the deceased at some time during the deceased’s lifetime.

How is the application made?

Action is commenced by a Summons in the Supreme Court (or in the District Court, where the court can make an order up to $750,000), and the applicant is required to file a detailed affidavit setting out his/her age, occupation and marital status, particulars of the deceased’s death and age at the time, particulars of any will, or other testamentary instrument, and of Probate or Letters of Administration, a brief statement of the estate assets, and details of the applicant’s relationship to the deceased and the circumstances establishing his or her claim to be provided for. The making of an order for costs of the application, is a matter for the Court to decide. The costs of the application are not automatically payable by the estate. The important thing is to consult a solicitor so that you can be properly advised and protected, since the costs of unsuccessful claims may be and often are, awarded against the applicant.

Your solicitor will be able to advise you about alternative dispute resolution (ADR) and explain that it can be used instead of, or at the same time as, litigation, and will generally cost less. Your solicitor will be able to advise you of the different ADR processes, which include mediation, conciliation, negotiation, independent expert appraisal and various forms of arbitration. If there is a need the Law Society can assist in the appointment of an independent Mediator.

Higgins Lawyers are experienced practitioners of deceased estates and contesting wills.

However, to avoid any confusion, it is best to instruct Higgins Lawyers to prepare a valid will. Home made wills are found by the court to be invalid.

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