The law surrounding disputes over wills in Australia has continued to evolve over time. This is seen by the increase in the number of cases involving small estates, de-facto partners, same-sex partners, step-children and foster children.
The categories of persons who are eligible to contest wills in Australia has also changed over time. These categories differ from state to state.
In NSW, Victoria and Queensland, there are specific categories of persons who are eligible to contest wills (that is, to bring applications for provision or further provision from a deceased person’s estate). However, these categories differ.
For example, in Queensland and Victoria, step-children are eligible to contest a Will (see sections 40 and 41 of the Succession Act 1981 (QLD) and sections 90 and 90A of the Administration and Probate Act 1958 (VIC)). However, in NSW, for step-children to be eligible, they are required to have lived with the deceased at a particular point in time and been dependent on the deceased (see section 57 of the Succession Act 2006 (NSW)).
There has been discussion in NSW about whether the category of eligible persons will be expanded to include step-children. However, the definition of children has yet to be broadened to include step-children in NSW.
Over time, there has been increased judicial concern over costs associated with family provision applications, particularly in cases involving small estates (that is, estates with a value under $500,000). In these cases, you are likely to see increased cost-capping orders where matters proceed to a Court hearing.
The sixth edition of the leading text in the area, Family Provision Law in Australia by Dr. JK de Groot and BW Nickel was recently published and provides interesting commentary regarding the law surrounding disputes over Wills in Australia.
by MAREE HARRIS