Contesting a Will

Contesting a Will in New South Wales generally means that a person is making a claim a family provision claim against an estate. The claim is usually by a family member or other close person to the deceased who has been left out of the Will or has been inadequately provided for in the WIll.

Contesting a will can be a complex and emotional process, and it is important to have experienced legal representation on your side. Our experienced will dispute lawyers have a deep understanding of the laws for contesting a will and challenging a will.

In New South Wales, a person can contest a Will if:

• Eligible Person: They are any eligible person under the Succession Act; and
• Inadequate Provision: They have been left out of the Will or they have been left with inadequate provision in the Will

The person who are eligible to make a family provision claim are set out in section 57 of the Succession Act 2006 (NSW). These people are:

1. The spouse of the deceased at the time of their death;
2. A person who was living in a de-facto relationship with the deceased at the time of their death;
3. Any child of the deceased;
4. Any former spouse of the deceased;
5. A person who was:
   1. a dependant (either, wholly or partly) on the deceased at any time; and
   2. a grandchild of the deceased, or a member of the deceased’s household;
6. A person who was in a close personal relationship with the deceased at the time of their death.

There are time limits for contesting a Will in New South Wales.

For any deceased who died after 1 March 2009, a family provision claim must be made within 12 months for the date of death. If the date of death is uncertain, the Court will usually determine a date that is reasonable in the circumstances.

You can with the permission of the Court make a family provision claim outside of the 12 month time limit. You need to show the Court that you have a sufficient cause as to why your application is late. If you are out of time to make a claim, contact our team for advice on whether you are still able to make a claim outside of time.

If you are an eligible person, you will need to prove to the Court that you have been left with inadequate and improper provision under the Will or from the estate.

In New South Wales, the Court will take into account various and diverse matters in determining whether to make a family provision order.

Under section 60(2) of the Succession Act 2006, the Court may consider:

1. The relationship between the deceased and the applicant, if any, including the nature and duration;
2. The obligations or responsibilities the deceased had, if any, to the applicant or any beneficiaries of the estate;
3. The nature and extent of the deceased’s estate including property which is notional estate and any estate liabilities;
4. The applicant’s financial resources (including earning capacity) and needs (both present and future) and those of any other applicant or beneficiary;
5. The financial circumstances of any other person cohabiting with the applicant;
6. Any disability, whether physical, intellectual or mental, of the applicant, any other applicant or beneficiary at the time of the hearing;
7. The applicant’s age at the time the application is being heard;
8. The applicant’s contribution (if any) to the deceased’s welfare or to the acquisition, conservation and improvement of the deceased’s estate, for which adequate consideration was not received by the applicant;
9. Any provision made by the deceased to the applicant during his/her lifetime or from the deceased’s estate;
10. Evidence of the deceased’s testamentary intentions, including evidence of any statements made by the deceased;
11. Whether the deceased maintained the applicant, wholly or partly, before his/her death and the extent to and basis on which the deceased did so (if the court considers it relevant);
12. Whether anyone else is liable to support the applicant;
13. The applicant’s character and conduct before and after the deceased’s death;
14. The conduct of any other person before and after the deceased’s death;
15. Any Aboriginal or Torres Strait Islander customary law that is relevant;
16. Any other matter that the Court considers relevant. This may include matters in existence at the time the deceased died or at the time of hearing.

Contesting a will and making a family provision claim is a complex legal process that requires a thorough understanding of estate law and the ability to present a compelling case. Engaging the services of an experienced estate litigation lawyer is crucial to ensure that the challenging party’s interests are protected and that the case is handled with sensitivity and professionalism during what is often an emotionally challenging time.

Contesting a will is a legally intricate and emotionally charged process that should not be undertaken lightly. It is essential to have valid grounds for challenging and to seek professional legal advice from an experienced estate lawyer to navigate through the complexities of the legal system and safeguard the rights and interests of all parties involved.

At Stephen Wawn & Associates, we understand the importance of ensuring that a deceased person’s assets and property are distributed according to their wishes. If you are considering contesting a will, contact us today to schedule a consultation with one of our experienced will challenge lawyers.