Introduction

Contesting a will is a complex legal matter, especially for individuals like nieces and nephews who are not automatically entitled to do so. In New South Wales, the Succession Act 2006 (NSW) outlines specific eligibility criteria, primarily focusing on dependency and household membership. Understanding these criteria is crucial for those considering a family provision claim, as the legal landscape can be both nuanced and challenging to navigate.

This article will explore the conditions under which a niece or nephew may contest a will in NSW. It will discuss the legal framework, dependency requirements, and practical considerations, supported by real case studies. By examining these elements, readers will gain clarity on how courts assess eligibility and the factors influencing successful claims.

Contesting vs. Challenging a Will: A Crucial Distinction for Nieces & Nephews

If you are a niece or nephew considering a claim against your aunt or uncle’s estate, it is vital to understand the difference between “contesting” and “challenging” their will. These are two distinct legal pathways with different arguments and goals.

Basis of the Claim	Contesting a Will (Family Provision Claim)	Challenging a Will
The Argument	“My aunt/uncle’s will is technically valid, but it failed to make fair provision for me, given that I lived with them and was dependent on their support.”	“This document is not my aunt/uncle’s true and valid will.”
The Goal	To have the court modify the will’s distribution to provide you with a share (or a larger share) from the estate for your maintenance and support.	To have the will declared legally void. The estate would then be distributed according to an earlier valid will or, if none exists, the laws of intestacy.
Common Grounds	As a niece or nephew, your grounds are proving you were wholly or partly dependent on your aunt/uncle and were a member of their household at some point.	Believing your aunt/uncle was pressured or coerced by another person (undue influence), was not mentally capable when they signed the will (lack of capacity), or that the will is a forgery.

In simple terms, you contest a will when you are seeking fair provision from the estate based on your special relationship of dependency. You challenge a will when you believe the document itself is illegitimate.

This guide focuses on the complex process of contesting a will as a niece or nephew. If you believe your aunt or uncle’s will is invalid due to issues like coercion or their mental state, you would need to explore the separate process of challenging the validity of a will.

Now, let’s examine the specific eligibility hurdles for a niece or nephew’s claim.

Eligibility Requirements for Claimants

Eligibility Criteria

Under the Succession Act 2006 (NSW), only specific individuals are automatically eligible to contest a will. These include:

• The deceased’s spouse
• De facto partner
• Former spouse
• Children
• In some cases, grandchildren

A niece or nephew is not automatically considered an eligible claimant unless specific circumstances apply.

For a niece or nephew to establish eligibility, they must demonstrate that the deceased had a legal obligation to provide for them. This can occur in two main scenarios:

• Legal Adoption: If the deceased legally adopted the niece or nephew, they are considered the deceased’s child and thus eligible to contest the will.
• Court Determination: In some cases, the court may find that the relationship between the niece or nephew and the deceased was akin to a parent-child relationship, even without legal adoption. For example, if the deceased raised the niece or nephew as their own, the court may grant eligibility.

Dependency & Household Membership Requirements

A niece or nephew can also establish eligibility by demonstrating dependency on the deceased. This requires two key elements:

Requirement	Description
Dependency	The claimant must demonstrate they were wholly or partly dependent on the deceased for financial support at any point during the deceased’s lifetime.
Household Membership	The claimant must have been a member of the deceased’s household, which involves living with the deceased and being part of their domestic unit.

Key Considerations for Claimants

Financial Dependency & Need

To establish eligibility, a niece or nephew must demonstrate that they were financially dependent on the deceased. This dependency requires clear evidence of financial support that goes beyond occasional gifts or emotional connections.

The court looks for a consistent pattern of financial reliance, which can be demonstrated through:

Method of Demonstration	Description
Living with the deceased	Sharing a household, which indicates reliance on the deceased for accommodation and daily needs.
Receiving financial support	Includes consistent contributions from the deceased towards education, medical expenses, or general living costs.
Dependency at any time	The dependency is not required to be at the time of death; it can be established from any period in the deceased’s lifetime.

Beyond establishing dependency, claimants must also prove that “adequate and proper provision has not been made” for their maintenance, education, or advancement in life. This requires demonstrating a position of financial need relative to the size of the estate. Without evidence of financial need, the court cannot make an order.

Relationship Strength

The quality of the relationship between the niece or nephew and the deceased plays a crucial role in the court’s decision. The court heavily scrutinises this relationship when considering factors warranting and community expectation.

Key relationship factors include:

Factor	Relevance in Court’s Evaluation
Close personal relationship	The court assesses if the relationship was similar to a parent-child dynamic, as seen in Christine Anne Lumsden v Ian Ross Sumner as Executor of the Estate of the Late Dorothy Jean Lawliss [2012] NSWSC 1440.
Estrangement	A history of estrangement can significantly weaken a claim by potentially negating the deceased’s moral obligation, as in Noble v Durrant (2023) NSWSC 513.
Moral obligation	The court evaluates whether the deceased had a moral duty to provide for the claimant, based on the claimant’s financial need and relationship quality.

Even if a niece or nephew establishes eligibility, they must also demonstrate “factors warranting” their claim. This critical hurdle requires showing reasons why the court should depart from the terms of the Will, based on community expectation that the deceased should have provided for them.

The Noble v Durrant (2023) NSWSC 513 case illustrates this challenge perfectly. While the nieces were found eligible, their claim was ultimately dismissed because there were not factors warranting the application, partly due to lengthy estrangement and relationship concerns.

Additional Considerations

When preparing a claim, nieces and nephews should also be aware of:

• Basis of the claim: The claim must be made on the premise that the deceased owed them a duty to provide adequate financial support and failed to do so in their will.
• Court’s holistic evaluation: Even if eligibility and other factors are proven, there’s no guarantee of receiving further provision. The Supreme Court evaluates the claim against the entitlements of other claimants and existing beneficiaries.

Understanding these factors is essential for potential claimants to assess their likelihood of success. Due to the nuanced and niche nature of family provision law, seeking the right advice from an experienced practitioner is absolutely crucial, particularly early on to assess the prospects of a claim. So contact PBL Law Group today for tailored guidance in pursuing your family provision claim.

Case Studies

Noble v Durrant

The case of Noble v Durrant (2023)NSWSC 513 examined the eligibility of nieces Charlotte and Carolyn to contest their aunt’s will. The court determined that the nieces were eligible to bring a claim under the Succession Act 2006 (NSW), as they had lived with the deceased as children after their mother’s passing.

However, despite establishing eligibility, the court ultimately dismissed their claim due to insufficient factors warranting the application. Several key elements influenced this decision:

Reason for Dismissal	Explanation
Lack of Financial Dependency	The nieces were not found to be materially dependent on their aunt during their adult lives.
Estrangement	The relationship between the nieces and their aunt had significantly deteriorated prior to her death.
No Financial Need	The court determined that the nieces did not have a pressing financial need for additional provision from the estate.

This case highlights an important principle: eligibility alone does not guarantee a successful claim. When deciding family provision claims, the court carefully weighs factors such as financial need, relationship dynamics, and moral obligations.

Christine Anne Lumsden

In Christine Anne Lumsden v Ian Ross Sumner as Executor of the Estate of the Late Dorothy Jean Lawliss [2012] NSWSC 1440, the court ruled that the niece was eligible to contest the will of her deceased aunt. The circumstances in this case were notably different from the Noble case.

The niece had resided with the deceased for over 35 years, relying on her for comprehensive support. This included:

• Financial assistance for school fees
• Provision of clothing
• Daily care and maintenance

The court found that the niece was both financially and emotionally dependent on the deceased, making her an eligible claimant under the Succession Act 2006 (NSW).

This case demonstrates how a niece or nephew can successfully contest a will when they can clearly prove dependency and household membership, even if they are not biological children of the deceased.

Procedural Steps for Contesting a Will in NSW

Filing a Family Provision Claim in NSW

To contest a will in NSW, a niece or nephew must file a Family Provision Claim with the Supreme Court of NSW. This process involves submitting an application that outlines the claimant’s eligibility and the reasons for seeking a share of the estate.

The claimant must provide necessary documentation, including:

• The deceased’s will
• Death certificate
• Evidence supporting their eligibility (such as proof of dependency or household membership)

Additionally, the application must be filed within the required timeframe and follow the court’s procedural guidelines. 

Time Limits & Notification Requirements

There is a strict twelve-month time limit for filing a Family Provision Claim in NSW, starting from the deceased’s death. Moreover, it is crucial to notify the executor of the estate before any distribution of assets occurs, as the court is less likely to approve a claim once the estate has been distributed.

Given these strict requirements, claimants should seek legal advice promptly to ensure they:

Action	Reason for Promptness
Meet all necessary deadlines	A strict twelve-month time limit for filing a claim exists from the date of death.
Follow correct notification procedures	The executor must be notified before asset distribution, as claims are less likely to succeed post-distribution.
Submit the application properly	Ensures adherence to the court’s procedural guidelines for a valid claim.

Conclusion

Contesting a will as a niece or nephew in NSW is a complex process that hinges on eligibility criteria such as dependency and household membership. The Succession Act 2006 (NSW) outlines these requirements, and understanding them is crucial for those considering a family provision claim. 

If you are considering contesting a will, it is essential to seek expert legal advice from trusted professionals. Contact PBL Law Group, experienced Family Provision Claim Lawyers in NSW, to guide you through the process and ensure your rights are protected. Their specialised services are tailored to your needs, offering trusted expertise and proven solutions to navigate the complexities of family provision claims.

Frequently Asked Questions