A person may question the validity of a will, or make an application under the Family Provision chapter of the Succession Act 2006 (Chapter 3). In each case, legal advice will be required.
Is the will valid?
To determine whether a will is valid, a court will have to answer the following questions:
- Is it the last will made by the deceased?
- Was it executed in accordance with the formal requirements of the Act or does it satisfy the requirements of the Act?
- Did the will-maker have the testamentary capacity to make the will? (see Capacity to make a will)
- Was the will altered after it was originally signed?
- Was there any undue influence involved when the will was drawn up?
If a person who has assisted the will-maker to draw up a will also stands to gain a great deal from it, that person may have to prove to the court that there was no trickery, pressure, force or fear involved in the making of the will.
Flattery and persuasion by someone who stands to gain from a will is not unlawful as such. The court will only overturn a will on the grounds of undue influence where it is satisfied the will-maker's mind was coerced to such an extent that the resulting will was contrary to the will-maker's real intentions. The courts may be especially suspicious about undue influence if there has been obvious persuasion by the person who drew up the will, especially where that person would benefit from it. It may be difficult to prove undue influence has been used unless there were witnesses present when it happened. A person claiming that undue influence was involved must prove the fact with full details and supporting evidence. It is not a claim that should be brought lightly.
The Supreme Court of NSW interprets wills made or contested in NSW. The executor, or a party interested in the estate, may apply to the court to have it determine what the will-maker meant by the will. For example, a woman with two grandsons called George may have left something to 'my grandson George'. Which one did she mean?
The common law power of a court to remedy a mistake in a will is severely limited, in contrast to the remedies available for matters involving living people. However, the 'rectification' power under section 27 of the Act does give the court the power to rectify a will if the way it is expressed fails to carry out the will-maker's intentions. Section 32 allows limited evidence to be admitted (including evidence of the will-maker's intentions) in a court hearing to have the true construction of a will determined if the language used in the will makes any part meaningless or ambiguous.
A new provision of the Act lists the categories of people who are now entitled to look at a will of a deceased person and be provided with a copy (at their cost). They include anyone named in the will, anyone named as a beneficiary in an earlier will, surviving spouse or de facto or issue of the deceased (section 54). Previously the executor could refuse to provide a copy of the will and it could only be obtained from the registry after probate was granted.
Family provision orders
The Family Provision Act 1982 was repealed when the Succession Amendment (Family Provision) Bill 2008 commenced on 1 March 2009. The new provisions form chapter 3 of the Succession Act 2006 titled 'Family Provision'. Although some of the terminology has changed, the rationale of the provisions remains the same which is to ensure that adequate provision is made for certain defined eligible persons, whether or not there was a will and whether or not the eligible person was mentioned in it.
An application under the Act must be made within 12 months of the death (it was previously 18 months). The applicant can ask the court to have the period extended, but there can no longer be an extension of time by the consent of the parties. There is no longer an express power for the executor or administrator to seek to have the period shortened if circumstances warrant.
Who can apply?
Those eligible to apply are:
- the wife or husband of the deceased person at time of death
- a person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partners)
- a child of the deceased person
- a former wife or husband of the deceased person
- a person who was, at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
- a grandchild who was at any particular time wholly or partly dependent on the deceased person
- a person with whom the deceased person was living in a close personal relationship at the deceased person's death
A de facto relationship is now defined in section 21C of the Interpretation Act 1987and includes same sex relationships, persons in registered relationships, including interstate relationships (Relationships Register Act 2010) and "a person in a de facto relationship" which is further defined as having a relationship as a couple living together who are not married to one another or related by family.
What is a de facto relationship?
A de facto relationship is defined as a relationship between two adults:
- who live together as a couple, and
- who are not married to one another or related by family.
In determining whether two people are in a de facto relationship, the court will take all the circumstances of the relationship into account, including such matters as:
- the duration of the relationship (generally at least two years)
- the nature and extent of the common residence
- whether or not a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- 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.
A close personal relationship is defined in the Succession Act as 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 of each of whom provides the other with domestic support and personal care. Specifically excluded is care provided for a fee or reward or on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
If the court approves, a person can forego their rights under the family provision sections of the Succession Act 2006. This could happen on a property settlement following a divorce (section 95).
What is a domestic relationship?
Under the Property (Relationships) Act 1984, (section 5) a domestic relationship is defined as:
- a de facto relationship (see below); and
- a close personal relationship in which two adults live together, and one or both provides the other with domestic support and personal care. The relationship need not necessarily be sexual, and the people may or may not be related.
Paid carers, including those working for government or charitable organisations, are excluded from the definition of persons in a domestic relationship.
What the court takes into account
The court's concern is that an eligible person's maintenance, education or advancement in life be properly provided for. The relevant circumstances are those at the date of the hearing, not the date of death, and the court can consider community standards.
Section 60(2) of the Succession Act 2006 now sets out 16 matters which may be considered by the court in making its decision, including:
- the character and conduct of the eligible person before and after the death
- any contribution made by the eligible person towards the deceased's property or welfare
- anything else it considers important.
The court can make interim orders, which can later be confirmed, changed or withdrawn (section 62).
Notional estate orders
Sometimes a person deals or disposes of their assets while they are alive so that the assets do not form part of their estate or the assets may have been distributed from the estate (relevant property transactions). In certain limited circumstances, the court can make orders against the notional estate of the deceased (Succession Act 2006, Part 3.3).
Relevant property orders
Relevant property transactions must have occurred:
- within three years before the person's death, if it was done with the intention of denying an eligible person provision from the estate
- within a year before the death, if at that time the person had a moral obligation to make proper provision for the eligible person
- on or after the person's death.
Cost of the application
Generally the costs of a successful application for an order are paid out of the estate, though the court may order the payment of costs as it sees fit (Succession Act 2006, section 99). Section 99(2) also enables regulations to be made in respect of costs including the fixing of maximum costs for legal services which may be paid out of the estate or notional estate of the deceased.
Section 98 requires compulsory mediation before any hearing unless there are special reasons such as the risk of violence.