Contesting a Will as a Member of the Household

A person who has been a member of the same household as the deceased is an Eligible Person pursuant to section 57 of the Succession Act 2006 provided that person was also wholly or partly dependent on the deceased at any one time.

Being a member of the household does not mean that a person need only stay under the same roof, they must contribute to the household as a unit living together. The distinction can be seen by comparing a paid boarder staying in their own living quarters and as opposed to a family member staying to contribute towards the cleaning, cooking and day to day activities which going with a household. There is no statutory minimum period in which one must be a member of the household but the requirement to live together as a unit is more likely to exist if the person has lived in the household for an extended period, as opposed to a short stay.

In addition to the requirement of being a member of the household the person so contesting the will must also establish that they were wholly or partly dependent on the deceased at any one time. The dependency does not have to occur at the same time as being member of the household, but the most common method of establishing dependency is often the tenure at the household, especially where no rent or board was being paid.

Because of the category of eligibility a member of the household wholly or partly dependent on the deceased at any one time must also establish that there are factors which warrant the making of an order. This means that there must be circumstances which give the person the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person. This is not an easy hurdle to overcome. Being named in a will (including prior will), being brought up in the same house as the deceased, or having a strong personal relationship will often assist with a finding that there are factors which warrant the making of an order.

Eligibility does not mean that the member of the household wholly or partly dependent on the deceased at any one time will be successful in contesting the will and simply allows the person to commence proceedings, which must be filed within 12 months from the date of death.

If the Court is satisfied there are factors which warrant the making of an order then the Court must determine whether the provision made for the member of the household in the will (or if there was no will in accordance with the rules of intestacy) was inadequate. If the provision is inadequate then the final stage is the determination of what amount, if any, should be paid to the member of the household from the estate of the deceased person (in addition to the amount they are already entitled to under the will). In making this determination the Court will look to a number of matters including:

• any family relationship, including the nature and duration of the relationship.
• the nature and value of the estate.
• the financial resources and needs of all interested parties.
• any physical, intellectual or mental disability of all interested parties.
• the age of the member of the household.
• any contribution made to the estate or welfare of the deceased.
• any provision made for the member of the household the deceased before or after death.
• whether the member of the household was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
• whether any other person is liable to support the member of the household.

Although ultimately each case turns on its own particular circumstances, contesting the will as a member of the household is a difficult task given the number of hurdles to be overcome before the Court can make an order. Addressing each of these matters in a satisfactory fashion is the task of a lawyer with experience in this area of law.

If you are an executor of a deceased estate, or a person who has lived with the deceased person and who has been left with inadequate provision from the estate then we are able to meet with you, or speak with you on the phone, for a no obligation assessment of your case, at no cost. Get in touch by contacting your nearest Prime Lawyers office or by making an enquiry online.

We have contested estates lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.