On 1 January 2025 the Succession Act became effective and replaced the previous legislation that allowed the family members of a deceased person to contest their will. However, family members can still contest the deceased’s will under the Succession Act.
Which family members of the deceased can contest their will?
The family members of a deceased person who can contest their will are listed in the Succession Act. These family members are:
1. The spouse of the deceased
2. The domestic partner of the deceased
3. A former spouse of the deceased
4. A former domestic partner of the deceased
5. A child of the deceased
6. A stepchild of the deceased
7. A grandchild of the deceased
8. A parent of the deceased
9. A sibling of the deceased.
Are there any conditions these family members must satisfy before they can make a apply to contest the will?
A spouse or a child of the deceased do not need to satisfy any conditions listed in the Succession Act to make a claim. Neither does a domestic partner, although they will need to receive a declaration from the Court that they were the domestic partner of the deceased.
For the other family members listed above, the conditions they need to satisfy are as follows:
1. A former spouse and former domestic partner of a deceased person need to satisfy the court that there was no agreement or court order in force relating to the deceased’s and their interests in property.
2. A stepchild of a deceased person needs to satisfy the court that:
– They are disabled or significantly vulnerable by reason of the disability
– They were dependent on their deceased stepparent at the time of their death
– They cared for or contributed to the maintenance of their deceased stepparent before their death
– They substantially contributed to their deceased stepparent’s estate
– Their natural parent’s assets substantially contributed to their deceased stepparent’s estate
– If they are a minor, that their deceased stepparent maintained them at their death
3. A grandchild needs to satisfy the court that their parent (who was a child of their deceased grandparent) died before their deceased grandparent. Or that their deceased grandparent maintained them at their death.
4. A parent needs to satisfy the court that they cared for or contributed to the maintenance of their deceased child at their death or that they were maintained by their deceased child when they died.
5. A sibling needs to satisfy the court that they cared for or contributed to the maintenance of their deceased sibling at their death.
6. A parent and a sibling can also make a claim if, in the case of their deceased child or sibling who died in a residential facility, that they cared for or contributed to the maintenance of their child or sibling prior to them entering the residential facility.
What does the court consider when making an order for provision to a family member who contests the deceased’s will?
The court will make an order if the family member making the claim satisfies them that they have been left without adequate provision for their proper maintenance, education or advancement in life by reason of the deceased person’s will, or if they died without a will, the distribution of the estate by the rules of intestacy.
Broadly, the family member making the claim needs to establish the moral duty of the deceased to provide for them and that they have a need for an inheritance, such as a financial or medical need. The court will also consider the financial position of the other beneficiaries in the will.
In determining whether to make an order for further provision the primary consideration of the court is the wishes of the deceased person. The court will also have regard to the claimant’s vulnerability and dependence on the deceased and their character and conduct.
Time within which an application must be made
An application by a family member for provision from a deceased person’s estate must be made within 6 months after the grant of probate or administration. The court may grant an extension but only before the final distribution of the estate.
What next?
If you are one of the above-named family members of a deceased person and you believe you have not received adequate and proper provision from their estate, speak to one of our experienced Wills and Estates Lawyers at Lindbloms Lawyers today on 8357 7611.