Who can view the will?
Section 54 of the Succession Act 2006 (NSW) lists the categories of people who are entitled to look at the will of a deceased person and be provided with a copy (at their cost). 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.
People who may be eligible to see the will before Probate is granted include:
- any person named or referred to in the will, whether as a beneficiary or not
- any person named or referred to in an earlier will as a beneficiary
- the surviving spouse, de facto partner (same or opposite sex) or children of the deceased person
- a parent or guardian of the deceased person
- any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate (see Who is eligible to inherit if there is no will in the Procedure on death if there is no will chapter)
- any person (including a creditor) who may have a claim against the estate of the deceased person.
For the complete list see the Succession Act, section 54. If you apply to inspect or obtain a copy of the will it must be at your own expense.
A person may question the validity of a will or make an application under the family provision chapter of the Succession Act (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 in the Wills chapter)
- 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 are not necessarily unlawful. 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.
Family provision orders - with or without a will
The Family Provision Act 1982 was repealed when the Succession Amendment (Family Provision) Act 2008 (NSW) commenced on 1 March 2009. The provisions now form Chapter 3 of the Succession Act 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.
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. Since 2 June 2018, an extension of time is now possible with the consent of the parties (as there was in the previous Act). 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 for family provision orders are:
- the wife or husband of the deceased person at the time of their death
- a person who was living in a de facto relationship with the deceased person at the time of their death
- a child of the deceased person
- a former husband or wife of the deceased person
- a person who was, at any 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 time, wholly or partly dependent on the deceased person
- a person who was living in a close personal relationship with the deceased person at the time of their death.
A de facto relationship is defined in section 21C of the Interpretation Act 1987 (NSW) and includes same-sex relationships, persons in registered relationships, and interstate registered relationships (Relationships Register Act 2010). Being a ‘person in a de facto relationship’ is further defined as ‘having a relationship as a couple living together’ where the couple are not married to one another or ‘related by family’ (also defined in section 21C of the Interpretation Act). A de facto relationship can exist even if a person in the relationship is legally married to another person or in a registered relationship with another person.
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. This could happen on a property settlement following a divorce (section 95).
A child of the deceased can include a child who results from the deceased's domestic relationship in a variety of circumstances which are set out in the Succession Act section 57(2). A domestic relationship is defined under the Property (Relationships) Act 1984 (NSW), section 5 as:
- a de facto relationship; 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).
This definition also excludes 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 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
In certain limited circumstances, the court can designate property not included in the estate or already distributed from it as ‘notional estate’ of the deceased person for the purpose of making family provision orders. This is covered by Part 3.3 of the Succession Act. An order will only be made if a family provision order or certain costs orders are to be made. The part may apply where 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). Legal advice is recommended.
Relevant property transactions
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, 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.
The settlement of disputes concerning the estate of a deceased person is encouraged by the Succession Act. Under section 98 compulsory mediation is required before any hearing, unless there are special reasons such as the risk of violence.