Challenging a Will under the Family Provision Act (FPA) in NSW
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Who is able to challenge a Will under the FPA?
The FPA is very specific as to who is eligible and entitled to make a claim against an estate of a deceased person:
- Husband or wife of the deceased at the time of the deceased person’s death;
- A person with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death. The former category includes de facto spouses and same sex partners;
- A child of the deceased person. If the deceased had adopted children and/or estranged children, they are also eligible;
- A former wife or husband of the deceased;
- Persons who were wholly or partly dependent upon the deceased, being a grandchild of the deceased;
- There is eligibility for de facto relationships, if a person was living with a deceased and not necessarily having a sexual relationship, this includes a situation where a person provided certain services or may have been a carer for the deceased. There is an exclusion to paid personal carers.
It is simply not good enough to be an eligible person, as it is essential to establish need by the application.
Time limits
The application in New South Wales for provision under the FPA must be made within eighteen (18) months of the date of death of the deceased. The Supreme Court does have the discretion to extend the time limit, but the Court will have a close look as to why the application was not made within the specified time.
Payment of Costs
It is usual in successful applications that an Order for costs is made against the Estate and the Estate will be liable to pay costs accordingly.
What do I do should? I wish to discuss my specific matter and my rights and chances of success about challenging a Will. Please contact our office.