Introduction

Contesting a will is a complex and sensitive issue, particularly for parents seeking to contest the distribution of a deceased child’s estate in New South Wales. While parents are not automatically eligible to contest a will under succession law, they may still have opportunities to seek a fair share of the estate under specific conditions. This guide provides essential information and practical guidance on the key aspects of contesting a will in NSW, including eligibility criteria, procedural steps, and important considerations for parents.

Contesting vs. Challenging a Will: What’s the Difference for a Parent?

As a parent navigating this difficult time, it’s vital to understand the difference between “contesting” and “challenging” a will. These terms describe two entirely different legal actions, and choosing the right one is critical to your claim.

Basis of the Claim	Contesting a Will (Family Provision Claim)	Challenging a Will
The Argument	“My child’s will is valid, but it didn’t leave me with enough to support me, especially since I was dependent on them.”	“My child’s will is completely invalid and should not be recognised.”
The Goal	To ask the court to alter the will’s distribution to provide a fair share for your proper maintenance and support.	To have the will thrown out entirely, causing the estate to be distributed according to a previous, valid will or the rules of intestacy (as if there was no will).
Common Grounds	As a parent, your grounds would be proving you were dependent on your child and a member of the same household at some point, and were left without adequate provision.	Believing your child lacked the mental capacity to make a will (e.g., due to illness), was pressured by their partner or another person (undue influence), or that the document was fraudulent or signed improperly.

In short, as a parent, you contest the will when you need financial support from the estate based on your dependency. You challenge the will when you believe the document itself is illegitimate.

This guide focuses on contesting a will, which is the process for making a family provision claim. If you believe your child’s will is invalid for reasons like undue influence or lack of capacity, you would need to explore the process of challenging the validity of a will.

With this crucial distinction in mind, let’s look at the specific requirements for a parent’s claim.

Eligibility Requirements for Parent Claimants

Dependency & Household Membership

To contest a will in New South Wales, a parent must meet specific eligibility criteria under the Succession Act 2006 (NSW). Unlike children, who are automatically eligible to contest a will, parents must demonstrate dependency and cohabitation with the deceased.

A parent can establish eligibility if they were dependent on the deceased and lived in the same household, even if this was in the past. Dependency can take various forms, including:

• Financial support (such as regular monetary assistance)
• Emotional reliance
• Practical assistance (such as help with daily tasks)

For example, a parent who relied on the deceased for household chores, financial support, or assistance with daily activities may satisfy this criterion. The court carefully evaluates whether the parent was wholly or partly dependent on the deceased, considering factors such as:

• Financial contributions
• Shared household responsibilities
• Emotional support
• Living arrangements

Parental Claims vs Children’s Claims

Parents face a conditional eligibility process that differs significantly from the automatic rights granted to children under the Succession Act 2006 (NSW). This legal framework prioritises the rights of spouses, de facto partners, and children over other family members.

To establish their eligibility, parents must provide substantial evidence of their dependency relationship with the deceased. This evidence may include:

• Financial records showing support received
• Documentation of shared living arrangements
• Witness statements confirming the nature of dependency
• Proof of cohabitation during relevant periods

This burden of proof reflects the conditional nature of parental claims, requiring parents to demonstrate that they were genuinely dependent on the deceased and were members of the same household at some point.

Key Considerations for Parent Claimants

Financial and Emotional Dependency

When a parent contests a will in NSW, the court evaluates evidence of dependency, which can be both financial and emotional in nature.

Financial dependency might involve:

Type of Dependency	Examples of Dependency
Financial	The parent relying on the deceased for household expenses Receiving regular financial support from the deceased
Emotional	Receiving emotional support from the deceased Getting assistance with daily tasks

For example, if the deceased helped with household chores, managed the parent’s finances, or provided emotional support, these factors can be considered evidence of dependency. To strengthen such claims, documentation is essential, including:

• Bank statements
• Witness statements
• Records of assistance

Existing Beneficiaries and Moral Obligations

The presence of other beneficiaries can significantly influence the court’s decision. If the deceased left assets to other beneficiaries, the court will carefully balance the parent’s claim against these existing interests.

Moral obligations also play a crucial role, especially if the parent was dependent on the deceased or had maintained a close relationship. In cases where there are no competing beneficiaries, the court may prioritise the parent’s claim.

This principle was demonstrated in the Elizabeth Ann Bremner v Jennifer Lee Graham [2016] NSWSC 633, where the court ruled in favour of the mother due to the son’s moral obligation to provide for her.

Case Studies

Elizabeth Ann Bremner v Jennifer Lee Graham Case

The case of Elizabeth Ann Bremner v Jennifer Lee Graham [2016] NSWSC 633 represents a significant example of a parent successfully contesting a will in New South Wales. Elizabeth Ann Bremner contested the will of her deceased son, John David Bremner, claiming she had been left without adequate provision.

This case highlights important legal criteria for eligibility and demonstrates how courts evaluate moral obligations in family provision claims. The key details include:

Case Detail	Description
Plaintiff	Elizabeth Ann Bremner, the 72-year-old mother of the deceased, who was bankrupt and relied on a government pension.
Deceased	John David Bremner, who died in 2014, leaving his entire estate to his de facto partner, Jennifer Lee Graham.
Estate Details	The combined estate and notional estate totalled approximately $566,997 (with the estate at $300,000 and notional estate adding another $300,000).
Basis of the Claim	The mother claimed eligibility under Section 57(1)(e) of the Succession Act 2006 (NSW), asserting she was wholly or partly dependent on the deceased and a member of the same household.

The court ultimately found in favour of Ms. Bremner, determining she was indeed an eligible person under the Act. Evidence demonstrated she had lived in the same household as the deceased during his youth and was partly dependent on him for financial, emotional, and practical support.

As a result, the court ordered that she receive a lump sum of $38,000 from the estate to address her financial hardship and discharge her bankruptcy.

Key Lessons for Parent Claimants

This case provides several valuable lessons for parents considering contesting a will:

Lesson	Explanation
Establishing Dependency & Cohabitation	The court emphasised that dependency and cohabitation do not need to be concurrent. A parent may establish eligibility by proving past dependency, even if they lived with the deceased earlier in life.
Moral Obligation	The court considered the deceased’s moral obligation to provide for the mother, especially given her financial hardship and the absence of a spouse or children.
Evidence of Dependency	Objective evidence was crucial. This included documenting the deceased’s assistance with household chores, financial support provided, and emotional care given.
Modest Awards	The court may grant modest awards to address financial hardship and ensure proper maintenance, even in cases involving smaller estates.

This case underscores the importance of understanding the legal criteria for family provision claims and the role of moral obligation in the court’s decision-making process. Parents considering contesting a will should seek legal advice to navigate the complexities of eligibility, evidence requirements, and court procedures.

Legal Process for Contesting a Will in NSW

Filing a Family Provision Claim

To contest a will in New South Wales, you must file a Family Provision Claim through the Supreme Court. This process begins with submitting an application to the court, which outlines your eligibility and the reasons why you believe the will does not adequately provide for you.

The application must include detailed evidence supporting your claim, such as:

• Financial records
• Witness statements
• Documentation of your relationship with the deceased

Key steps in the process include:

Step	Description
Filing the Application	Submit your claim to the Supreme Court of NSW. Ensure the application is complete and includes all necessary documentation to support your eligibility and the adequacy of provision.
Serving the Application	Once filed, the application must be served on the executor of the estate. This step ensures that the responsible party is informed and can respond if necessary.
Court Proceedings	The court will schedule a hearing to review your claim. During this process, both sides may present arguments, and the court will evaluate the evidence to determine if the will should be redistributed.

Notifications & Legal Deadlines

Adhering to legal deadlines for filing a family provision claim is crucial when contesting a will in NSW. Key deadlines and notifications include:

Requirement	Details
12-Month Time Limit	A Family Provision Claim must be lodged within 12 months from the date of the deceased’s death. Exceptions require demonstrating “sufficient cause” for the delay.
Notifying the Executor	The executor of the estate must be notified of your intention to contest the will as soon as possible, even though they may begin distributing the estate six months after the death.
Distribution of the Estate	If the estate has already been distributed before your claim is filed, it may complicate the process. The court may order the redistribution of assets if your claim is successful.

By understanding and adhering to these procedural requirements, you can navigate the legal process more effectively and ensure your claim is considered. 

Conclusion

Contesting a will in New South Wales as a parent involves navigating complex legal criteria and procedural steps. Eligibility requires demonstrating dependency and cohabitation with the deceased, even if these factors were present earlier in life. Parents must provide substantial evidence to support their claims, including financial records, witness statements, and proof of cohabitation. The court evaluates various factors, such as moral obligations and the size of the estate, to determine if adequate provision was made.

If you are considering contesting a will, it is crucial to seek expert legal advice from experienced Family Provision Claim lawyers in Sydney. Contact PBL Law Group today to discuss your case and ensure your rights are protected.

Frequently Asked Questions