In our experience, most Will disputes can be settled at or before mediation, therefore reducing the costs and stress on family relationships.

Sanford Legal is committed to working with you to address your concerns, assess the relevant issues and give you sensible, practical and candid advice about the legal options available to you.

Preparing a legal Will is the best way to ensure that once we die, our family members are properly provided for and the likelihood of estate disputes occurring is reduced.

At Sanford Legal, we ensure your interests are best protected.

Challenging a Will
You may be entitled to challenge a Will if you have been left out of it or you haven’t been provided for adequately.

The law recognises the entitlement for a person to state their intentions in relation to distribution of their assets upon the death in their Will. However circumstances can change and many people may leave a Will that was prepared in a different stage of their life. Sanford Legal will assist you to fight for what is rightfully yours.

Challenging a Will during a mourning period can be a stressful experience which is why Sanford Legal will help you make the process as simple as possible.

Remember, every case is different and our advice will be based on the facts and circumstances surrounding the Will. We’ll assess the situation and develop a strategy that will help you benefit from a positive outcome in a timely manner that suits your budget.

Grounds to Challenge a Will
In NSW there are many different grounds to challenge a Will. The most common Will challenge claims occur because a person was left out of a Will totally or was not adequately provided for by the deceased in their Will. These are called Family Provision Claims.

Family Provision Claims
A family provision claim is made, by an eligible person who has been inadequately provided for under a Will, or not provided for at all.

The Law
The Succession Act 2006  (“the Act”) contains the laws that govern the procedure for making a claim for Family Provision.

Time limits on making a claim
A claim must be made within 12 months of the deceased’s death. The court may allow a claim to be lodged after this time if there is “sufficient cause” shown.

Eligible Persons – Who can make a claim

An eligible person is:

1. The wife or husband of the deceased when the deceased died;
2. In a de facto relationship with the deceased when he/she died;
3. A child of the deceased;
4. Former wives and husbands of the deceased;
5. A person
   • who was, at any particular time, wholly or partly dependent on the deceased, and
   • who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member;
   • A person who was living with the deceased in a close personal relationship at the time of death.

How do Courts determine Family Provision claims?

In summary, the two stages are:

1. Under the Will, is there inadequate provision for the Applicant’s proper maintenance, education and advancement in life?
2. If so, what provision needs to be made out of the estate in favour of the applicant. This is a discretionary exercise.

The court may have regard to the following when considering whether the Applicant is an eligible person:

1. Any family or other relationship between the Applicant and the Deceased Person, including the nature and duration of the relationship,
2. 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,
3. 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,
4. 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,
5. If the Applicant is cohabiting with another person – the financial circumstances of the other person,
6. 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,
7. The age of the Applicant when the application is being considered,
8. 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,
9. 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, and any evidence of the testamentary intentions of the Deceased Person, including evidence of statements made by the Deceased Person,
10. Whether the Applicant was being maintained, either wholly or partly, by the Deceased Person before the Deceased Person’s death and, if the Court considers it relevant, the extent to which and the basis on which the Deceased Person did so,
11. Whether any other person is liable to support the Applicant,
12. The character and conduct of the Applicant before and after the date of the death of the Deceased Person,
13. The conduct of any other person before and after the date of the death of the Deceased Person,
14. Any relevant Aboriginal or Torres Strait Islander customary law,
15. 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.

Disentitling conduct
The character and conduct of the Applicant before and after the deceased died may warrant a refusal to make any order for provision or to reduce the amount of provision. Such conduct is generally referred to as “disqualifying conduct” or “disentitling conduct” and examples include:

1. Adultery
2. Desertion
3. Violence or threats
4. Ill treatment
5. Estrangement.

Although cases where an Applicant is completely shut out on these grounds are rare, estrangement between a child and parent is often an issue in family provision cases. The cause of the estrangement will be important, and it should be observed that there is no presumption that the estranged Applicant was at fault or that the testator acted with reasonableness. It may be appropriate to look at the causes of the estrangement and whether the actions of the parties can be justified (such as a testator’s reasons for treating a beneficiary in a certain way under a will or excluding them entirely).

The Estate and Notional Estate
The property that may be subject to a Family Provision order is property that, on a grant of probate or letters of administration, vests in the executor or administrator.

The notional estate provisions are set out in the Act. These provisions empower the court in limited circumstances to designate property “notional estate” from which a family provision order or costs order may be made. It is a form of claw-back.

The court must first be satisfied that the estate, if any, is insufficient for the making of the Family Provision order, or any order as to costs, that the Court is of the opinion should be made, or provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.

An order may designate as notional estate property only to the extent that is necessary for provision to be made or costs paid or both.

Property that may be designated notional estate includes, for example, property disposed of for less than full valuable consideration by the deceased in the 3 years prior to his/her death with the intent of denying or limiting provision being made out of the estate, and property of the estate that has been distributed.

Practice and procedure of Family Provision Claims

Time limits on bringing a claim
The claim must be made no later than 12 months after the date of the deceased’s death.

How proceedings begin
Most claims are brought in the Supreme Court. The District Court has limited jurisdiction over Family Provision claims, only up to $250,000.

Family Provision claims first begin by filing a Summons. An Applicant must also file with the Summons:

1. An affidavit from the plaintiff supporting the claim;
2. A notice setting out the names and addresses of any person who is or might be an eligible person;
3. A further affidavit setting out an estimate of the Plaintiff’s legal costs and disbursements, on a party/party basis, up to and including mediation.

Plaintiff’s affidavit
The Plaintiff’s affidavit-in-chief is filed and served with the Summons commencing the proceedings.

If you are married or in a de facto relationship, you must also file a further affidavit with evidence of the financial and health circumstances of your spouse.

Defendant’s evidence
At the first directions hearing, the defendant (the administrator or executor of the estate) will be ordered to serve affidavits.

The affidavit of the administrator/executor must include the following matters:

1. A copy of the Deceased’s Will and the probate or letters of administration, if granted;
2. A description of the nature and value of the assets and liabilities of the Deceased at the date of death. (A copy of the inventory of property attached to the probate or letters of administration will suffice so far as the property of the deceased at the date of death unless other assets have been discovered);
3. What is, or is likely to be, the nature, and an estimate of the value, of:
   • The assets and liabilities of the Deceased at the date of swearing the affidavit;
   • Any property of the Deceased that has been distributed at any time after the death of the deceased and the date of the distribution of that property;
   • The gross distributable estate (leaving out costs of the proceedings).
4. A description of the nature, and an estimate of the value of any property which, in the administrator’s opinion, is, or may be, the subject of any prescribed transaction or relevant property transaction;
5. The name and address of every person who, in the administrator’s opinion, is holding property as trustee, or otherwise which is, or may be, the subject of any prescribed transaction or relevant property transaction;
6. Any testamentary and other expenses, or other liabilities of the estate that have been paid out of the estate of the deceased, including the amount, if any, paid for, or on account of, the Administrator’s costs of the proceedings;
7. Whether any commission is to be sought by the Administrator, and if so, an estimate of the amount proposed to be sought;
8. The names and address of every person who, in the Administrator’s opinion, is, or who may be:
   • An eligible person;
   • An eligible person under a legal incapacity;
   • A person beneficially entitled to the distributable estate;
   • A person holding property as trustee or otherwise.
9. In addition, the administrator/executor must also provide:
   • An affidavit of service of a notice of claim on various persons in accordance with Schedule J of the Supreme Court Rules and paragraph 9.2 of the Practice Note.
   • An affidavit in reply to the Plaintiff’s affidavit in chief, which may contain facts contradicting facts contained in the Plaintiff’s affidavit or other matters the administrator/executor will rely upon;
   • An affidavit, which identifies each beneficiary who is raising, or is likely to raise, his, her, or its, financial, material, or other, circumstances as a competing claimant, and each beneficiary who is not raising, or is not likely to raise, those circumstances;
   • An affidavit setting out an estimate of the administrator’s costs and disbursements, calculated on the indemnity basis, up to, and including, the completion of the mediation.

Mediation
Once the parties’ affidavits have been filed with the Court and served on all parties, the matter will be referred to mediation. Mediation is an informal, confidential meeting between the parties to discuss possible resolution of the matter.

The Supreme Court provides a “free” court-annexed mediation facility. One of the Court Registrars is allocated as mediator and the use of mediation rooms is provided, at no charge to the parties.

If the parties retain a private mediator, the mediator’s fees are generally between $4,000.00 to $6,000.00 plus GST and are to be paid equally by the parties.

Costs
The court has a very wide discretion in relation to awarding costs in Family Provision proceedings.

As a general proposition, an executor’s or administrator’s costs will be paid out of the estate or notional estate if they have been reasonably incurred.

Usually, an unsuccessful applicant will be ordered to pay the estate’s costs, however, the scope of the discretion in these type of cases is wide to allow a departure from that result in the circumstances of a particular case. For example, some cases may warrant an order that an unsuccessful Plaintiff’s costs be paid from the estate.

The court may order a cap on the amount of costs that may be recovered. The circumstances that may warrant a cap on costs include, but are not limited to, cases where the net distributed value of the estate in question (excluding proceeding costs) is less than $500,000.00.

Contact Sanford Legal today for a free case assessment.