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There are probably a few misconceptions out there about what it means to “contest a will”. When clients tell me they want to “contest” or “challenge” a will, it can mean a few different things.

 

“Contesting a will” can mean challenging that the will maker had capacity to make a will, or asserting that the will maker was unduly influenced by someone into making a will that did not accord with the will maker’s actual wishes.

 

However, more commonly I find clients mean they want to make what is commonly known as a “family provision claim”.

 

This article deals with challenging a will on the basis of a family provision claim, that is, the person challenging the will feels that he or she was not left enough money under the will.

 

Who can make a family provision claim?

 

Every State has legislation which allows an “eligible person” to commence legal proceedings against a deceased estate in order to obtain further provision (i.e., more money) from the estate.

 

In NSW, that legislation is the Succession Act 2006 (“the Act”).

 

Under the Act, an eligible person is:

 

      • 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, at that particular time or at any other time, 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.

Who defends the will?

 

The defendant in any family provision claim will be the executor or administrator of the estate.

 

An executor or administrator can also be a beneficiary of the estate. This tends to be the case in smaller estates. Sometimes the will maker will appoint an independent person to be an executor (such as a lawyer or accountant), particularly if it is a large or complex estate.

 

I have acted for plaintiffs and defendants in many family provision claims. More often than not, the defendants I have acted for have also been beneficiaries who have inherited most of the estate. This means the plaintiff (the person bringing the claim) is usually related to or has some connection to the defendant executor (e.g., brother; sister; stepfather etc). If the plaintiff succeeds, the defendant executor/major beneficiary will have his or her share of the estate reduced, so that further provision can be made for the plaintiff.

 

In these circumstances, there is often a great deal of bitterness involved because:

 

        • one relative is suing another;
        • a beneficiary’s share of the will may be reduced; and
        • old family wounds can be re-opened due to the litigation.

 

The plaintiff and defendant executor will both be required to give evidence by affidavit. Other witnesses may also give evidence for the plaintiff or the defendant.

 

My general strategies for dealing with family provision claims are as follows. I say “general” because each case is fact-specific and requires an approach that is tailored to the facts and family dynamics. There can never be a “one size fits all” approach to family provision litigation.

 

Stick to the facts

 

Firstly, a lay witness’s opinions are generally not admissible as evidence. Secondly, affidavits that are laden with florid language and complaints about the plaintiff/defendant’s character will not impress the judge.

 

Any pertinent facts about a party’s relationship with the deceased should be included in the evidence but petty matters should be avoided. The Court recognises that family members will often have disagreements about various matters over time and will take that into account when assessing the nature of the relationship between the deceased and a party to the litigation.

 

Try to settle

 

Approach the matter with a level head as much as possible and try to settle it before it ends up at a final hearing. This is difficult to do if you are the litigant in the context of a family provision claim where emotions can run high and for good reason, and the temptation is to fight on as a matter of principle.

 

However, your lawyer ought to be doing his or her best to resolve the matter without it getting to Court (in fact lawyers have an ethical duty to do this). If your lawyer is recommending that you as the litigant should make an offer or consider an offer from the other party, listen to your lawyer  – after all, you are paying for them to advise you.

 

I have seen many a family provision litigant take a “scorched earth” approach to litigation, with the result being that much of the value of the estate is consumed in lawyers’ fees because of the “principle of the matter”, i.e., not wanting to give in to the other side because of the emotion and animosity involved.

 

In NSW, all family provision claims are required to be mediated, so litigants will have an opportunity to settle the matter early and save the estate the high costs that will be incurred in a contested hearing.

 

Play a straight bat

 

By this, I mean don’t try to engage in sharp tactics to legally outmanoeuvre the other party. It is fair to say that judges will not look favourably on tactics that are designed to “wear the other side down” by increasing costs or drawing out the litigation.

 

Family provision litigation in NSW is quite “templated”, with a view to making the litigation efficient and to minimise costs. Interlocutory applications should be avoided if possible. Strike-out applications will rarely succeed even if the plaintiff brings his or her application out of time.

 

Piecing it all together

 

The complex legal considerations and often highly personal nature of a family provision claim can make challenging a will an exceedingly difficult process. A solicitor will not only help you navigate the many legal complexities, but can approach your matter objectively and overcome the emotional factors that may prolong  a claim and ultimately diminish the value of the estate.

 

Further Information and contact details

 

Pigott Stinson regularly assists clients on family provision claims and other areas of law touching on wills and estates. If you would like further advice on any of these areas please contact:

 

This article is produced by Pigott Stinson. It is intended to provide general information only. The contents of this Newsletter do not constitute legal advice and should not be relied upon as legal advice. Formal legal advice should be sought from us in respect of the matters set out in this Newsletter. Liability limited by a scheme approved under Professional Standards Legislation.