Who can challenge a will in NSW?

If you didn’t receive much under a will or if you thought that a will was unfair then you may be able to challenge it by applying for an order for family provision in the Supreme Court of NSW.

A family provision order is an order for provision out of a deceased person’s estate for the claimant’s maintenance, education and advancement in life.

If you wish to apply for a family provision order, the first thing to consider is your eligibility to make such an application.

The classes of eligible persons who may apply for a family provision order are set out in section 57 of the Succession Act 2006. They are:

1. Spouses of the deceased at the time of the deceased’s death;
2. Children of the deceased (including adopted children but not step-children or foster children; however if you are a step-child or foster child of a deceased you may still be eligible on the basis of some of the other categories below);
3. Former spouses of the deceased;
4. People who were living in a de-facto relationship with the deceased at the time of the deceased person’s death;
5. People who were, at any particular time, wholly or partly dependent on the deceased and either a grandchild of the deceased or a member of the deceased person’s household at any particular time; or
6. People who were living in a close personal relationship with the deceased at the time of the deceased person’s death.

The first three categories are straight forward however the last three categories are not and are explained further below.

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People who were living in a de-facto relationship with the deceased at the time of the deceased person’s death.

The difficulty with this category is determining what “de-facto relationship” means. Section 21C of the Interpretation Act 1987 defines the term “de-facto relationship”. To satisfy the definition, you must have had a “relationship [with the deceased] as a couple living together”. The Court will determine this by reference to the following considerations:

• the duration of the relationship;
• the nature and extent of any common residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence, and any arrangements for financial support;
• the ownership, use and acquisition of property;
• the degree of mutual commitment to a shared life;
• the care and support of children;
• the performance of household duties;
• the reputation and public aspects of the relationship.

Generally, cohabitation as partners will strongly point to there being a de facto relationship. However, the absence of this factor or any of the other factors is not itself determinative of the question of whether there is a de facto relationship. This means that you may have been in a de facto relationship with the deceased even if you did not live together.

Importantly, you may have been a de facto relationship with the deceased even though you were legally married to someone else! It is not uncommon for spouses of deceased persons to first learn of a de facto partner upon commencement of family provision proceedings.

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People who were, at any particular time, wholly or partly dependent on the deceased and either a grandchild of the deceased or a member of the deceased person’s household at any particular time.

To establish eligibility under this category you will firstly need to prove that you were a dependent of the deceased. The degree of your dependency may be in whole or in part and may have been at any particular time. The second element you will need to prove is either that you were a grandchild of the deceased or that you were a member of the same household as the deceased at any particular time whether that be the same time that you were his or her dependent.

The main difficulty with this category is in the definition of the word “dependent”.

The word dependent means “the condition of depending on something or on someone for what is needed” (Ball v Newey (1988) 13 NSWLR 489). The dependence may be of a  financial kind, an emotional kind or both.  Sackville AJA stated principles relevant to the consideration of whether an applicant is dependent on the deceased in his decision in the case of Page v Page [2017] NSWCA 141 as follows (at [101]):

1. “The word ‘dependent’ is an ordinary English word and whether a person is wholly or partly dependent on another is a question of fact.
2. The factual question can be complex and involve consideration of many elements. Accordingly, different minds might well differ in their approach.
3. While a common form of dependence is dependence on another for the material necessities of life, this is not the only form recognised by s 57(1)(e) of the Succession Act. For example, where a parent or step-parent provides a child who has no independent financial resources with services essential to well-being, the child might be found to have been wholly or partly dependent on the parent or step-parent.
4. Dependency involves the satisfaction of a need, but the need is not restricted to the requirements of basic necessities or sustenance.
5. The word ‘partly’ in the definition of ‘eligible person’ is a word of ‘some elasticity’. It does not necessarily mean ‘substantially’, but rather ‘more than minimally’ or perhaps ‘significantly’.
6. Dependency is not necessarily correlative with a legal duty to maintain, although such a duty is a factor to take into account. Nor are dependency and actual support necessarily correlative. Hence there may be cases where support has been provided without dependency, for example where the support is provided for a short time or for a particular purpose or where an adult child provides occasional domestic assistance to an aged parent.”

An illustrative case is that of Sammut v Kleeman [2012] NSWSC 1030. In that case, in what was described by Hallen AsJ (as he then was) as a borderline case, the applicant successfully established that he was partly dependent on the deceased who was his grandparent. The dependence was established on the basis of the deceased having, for a period of around two to three years, taken the applicant to school and on some occasions looked after him after school as the applicant’s parents were either at work or otherwise unable to perform such tasks. The deceased also took the applicant to some social events and paid for his school uniforms, excursions and meals on occasion. The applicant also claimed to have looked to he deceased for care and mothering and had provided him with emotional support although the applicant’s mother remained his primary caregiver. This case illustrates what can constitute dependence and shows that the period of dependence may be relatively short.

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People who were living in a close personal relationship with the deceased at the time of the deceased person’s death.

The term, “close personal relationship”, is defined in section 3(3) of the Succession Act 2006 as follows: “a close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.” It is important to note that to establish eligibility under this category, the provision of domestic support and personal care must have been without expectation of fee or reward. The term “fee or reward” is broad and includes some commercially valuable benefit or advantage (Skarica v Toska [2014] NSWSC 34). This can prove problematic for individuals who agree to move in with and provide care for elderly persons who have promised to leave them their property in return. If such a case occurs recourse may be had to doctrines such as proprietary estoppel in addition to an application for a family provision order.  

If it is the case that you didn’t receive much under a will or that you thought a will was unfair and you believe that you are eligible to apply for a family provision order, please contact our office on 02 9712 4244 and our friendly staff can assist!