It is not uncommon for a person to own real and personal property not just in the state they live in, but also in other states or even other countries. Where a deceased’s persons’ assets are spread across state borders, questions arise as to the appropriate jurisdiction to commence a family provision claim.
In NSW, under the Succession Act and pursuant to Practice Note SC Eq 7 – Family Provision, unless the court orders otherwise, all family provision claims must go through mediation before the matter can proceed to a final hearing.
It is common for testators to transfer property or assets to their intended beneficiaries prior to their death, in an effort to avoid any potential challenges to their will. The logic being that an applicant will be unable to challenge the will where the estate has no real value. However, in NSW transferring your assets before your death will not necessarily prevent a family provision claim from being made against your estate and in particular circumstances the court may make a Notional Estate Order.
In NSW, parents are under no legal obligations to leave an inheritance for their adult children. However, the succession legislation is underpinned by the assumption that children are the natural beneficiaries of their parents’ estates and adult children are automatically eligible to contest a will under family provision.
Singer v Berghouse establishes the two-stage approach which the court should take in assessing a family provision claim. However, Singer v Berghouse was decided with regard to the Family Provisions Act 1982 (NSW) and its applicability to the current NSW Legislation, the Succession Act, has been questioned.
Where a deceased dies without a will the rules of intestacy will apply and the deceased’s closest relative will inherit their estate. This raises the question: Is it possible to contest the distribution of the estate where there is no will?
It is generally assumed that where a child is estranged from their parents, particularly in circumstances involving hostility or disentitling conduct on the child’s part, that the parent is entitled to disinherit them. This begs the question, can an estranged child contest the will?
Nowadays, there is a societal expectation that siblings will receive equal provision their parent’s will. However, legally a parent is not obligated to treat their children equally and they can effectively distribute their estate however and to whomever they wish. So is it possible to contest a will on the basis that your sibling received a greater inheritance than you?
The costs of contesting a will in family provision are generally paid out of the estate, particularly where an applicant is successful. However, the outcome of the case can affect the costs order which the court sees fit to make, consequently, particularly in cases where the applicant is unsuccessful, the costs will not necessarily be paid out of the estate. The following cases provide an example of the range of costs orders which may be made in cases where the applicant is unsuccessful, demonstrating that the orders made will vary depending on the circumstances of the case.