Can an Estate be Contested When the Owner Hasn’t Left a Will?

Contesting Wills & Estate

Death is a somewhat taboo subject in our modern society, and with longer life expectancies and medical breakthroughs, death can seem like a far-off notion. Without forethought and consideration, an unexpected passing may bring confusion and questions for those left behind.

This is particularly true if the deceased did not leave a will. When this occurs the deceased is said to have died ‘intestate’ and their estate is divided according to legislation set out by the government. These laws vary across Australian states, but in NSW the rules governing the distribution of a deceased’s estate are set out in the Succession Act 2006.

The rules of distribution in the Succession Act are detailed and outline the order in which eligible relatives will inherit the estate and their share. A spouse and any children (referred to as issues) are given first priority, followed by immediate family and next of kin. Failing the existence of these eligible relatives the estate may pass to the government.

Which brings us to the question at hand; Can the estate be contested when there is no will?

The short answer is yes. Eligible persons can contest the estate under family provision laws, which allow an eligible person to make a family provision claim. A family provision claim can be made regardless of the existence of a will, and the rules governing such a claim are the same for both testate and intestate estates.

Eligible persons include:

  • Spouse
  • Child
  • De facto partner
  • Ex-wife or ex-husband
  • Grandchild
  • A person who was in a close personal relationship with the deceased person

A family provision claim can be made if an eligible person has received nothing or only a small amount from the deceased person’s estate. In other words, they must show they have received ‘inadequate provision’ from the estate.

If a family provision claim is made then a court will decide if further provision from the estate should be made for the proper maintenance and support of the claimant. When deciding on an appropriate amount, consideration is given to the individual’s dependence on the deceased and their individual circumstances.

Has someone close to you passed away intestate? Do you feel that you have not been provided for when their estate was divided according to the rules of distribution? You may be eligible to make a family provision claim. At Taylor & Scott, we specialise in family law and approach cases such as these with sensitivity and understanding. Arrange a meeting with one of our specialists today who can advise you in such an important matter.

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