How do I win an estate challenge?

The rules for challenging an estate are strictly enforced by the Supreme Court. Not only must a person establish they are an eligible person within the definition of section 57 of the Succession Act to challenge an estate, but they must also bring a claim within the time limit allowed by the legislation.

Time limits to challenge an estate
In NSW, a claim must be made “not later than 12 months from the date of death”. The court does have discretion to allow later claims “on sufficient cause being shown”.

What constitutes ‘sufficient cause’ will depend on the particular circumstances of each case.

Other states have different time limit rules. For example, in Victoria, a claim must be made “within six months from the date of a grant of probate”; in Queensland you must claim “within nine months from the date of death, however notification must be made within six months from date of death”; and Tasmania has the shortest time limit, which is “not later than” three months from the date of a grant of probate.

How to win a challenge to an estate
To be successful in an estate challenge you must be able to convince a court you have a greater need for provision out of the estate than any other beneficiaries or competing claimants.

What constitutes ‘need’ simply comes down to financial needs, although section 60 of the Succession Act proscribes a vast array of circumstances a court can take into account, including “any other matter the Court considers relevant”.

What in an estate can be challenged?
The entire estate can be challenged, including any superannuation, money held on trust for the estate or deceased person, money held on a bond, property transactions including jointly held property, and transactions which have occurred to defeat the court.

For more detailed information regarding whether you can make a provision claim against an estate you should contact me.

From Patrick Coetsee, Wills & Estate Solicitor, Kenny Spring Solicitors.
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