Can You Contest a Will in NSW?
Losing a family member is always difficult. That experience can become even more challenging when you discover that you were not included in their Will or you believe the Will does not properly provide for you.
In Australia, a person generally has the freedom to leave their assets to whoever they choose. However, NSW succession law recognises that some people have a close relationship with the deceased and may have relied on them for financial or personal support.
In certain circumstances, an eligible person can make a claim against an estate if the deceased failed to make adequate provision for their needs.
These claims are commonly known as family provision claims. They are governed by the Succession Act 1989 (NSW).
Ways a Will Can Be Challenged in NSW
When someone believes they have been unfairly excluded from an estate, there are two main ways they may challenge the Will:
| Type of challenge | What it involves |
|---|---|
| Challenging the validity of the Will | A person may argue that the Will is not legally valid because the Will-maker lacked testamentary capacity, did not understand the document, or did not properly execute the Will. |
| Making a family provision claim | An eligible person may apply to the Court if the deceased failed to make adequate provision for their proper maintenance, education or advancement in life. |
These two processes involve different legal tests. A person may have grounds to challenge a Will’s validity, make a family provision claim, or in some cases consider both options.
Challenging the Validity of a Will
A Will must satisfy certain legal requirements before a Court accepts it as valid.
A person may challenge the validity of a Will if they believe the Will-maker:
- Did not have the required testamentary capacity;
- Did not understand the nature and effect of making the Will;
- Did not understand the assets they owned or the people who may have a claim on their estate; or
- Did not properly sign or execute the Will.
Testamentary capacity is a key consideration when determining whether someone had the ability to make a valid Will.
The NSW Supreme Court deals with disputes involving deceased estates, including applications relating to Wills and estate administration. More information is available through the Supreme Court of NSW.
Making a Family Provision Claim in NSW
A family provision claim does not challenge whether the Will itself is valid. Instead, it asks the Court to consider whether the deceased made adequate provision for an eligible person.
To succeed with a claim, the applicant must generally show that:
- They are an eligible person under the Succession Act 1989 (NSW);
- The deceased had an obligation or responsibility to provide for them; and
- The provision made for them was inadequate for their proper maintenance, education or advancement in life.
The Court considers a range of factors when deciding whether to make an order. These may include the applicant’s financial circumstances, the size of the estate, the relationship between the applicant and the deceased, and the needs of other beneficiaries.
Not every person who feels disappointed by an inheritance decision can make a claim. The law limits family provision applications to specific categories of eligible persons.
Who Can Make a Family Provision Claim?
Under the Succession Act 1989 (NSW), only eligible persons can apply for a family provision order.
The seven categories of eligible persons include:
| Eligible person | When they may qualify |
|---|---|
| Spouse | A person who was the husband or wife of the deceased at the date of death. |
| De facto partner | A person who was in a de facto relationship with the deceased when they died, including same-sex partners. |
| Child | A biological or legally recognised child of the deceased. |
| Former spouse or former de facto partner | A former partner who was receiving or entitled to receive maintenance from the deceased at the time of death. |
| Grandchild | A grandchild who meets certain requirements under the legislation. |
| Step-child | A step-child who meets certain requirements under the legislation. |
| Parent | A parent of the deceased. |
The eligibility requirements can be complex, and simply being related to the deceased does not automatically mean a person can make a claim.
The NSW Trustee and Guardian provides information about deceased estates and estate administration. You can find further information through the NSW Trustee and Guardian website.
How Do You Prove You Were Not Adequately Provided For?
Being left out of a Will does not automatically mean you can successfully contest the estate.
To make a successful family provision claim, you must show that the deceased had a responsibility to provide for you and that the provision you received was inadequate for your proper maintenance, education or advancement in life.
The Court considers each case individually. It looks at the relationship between you and the deceased, your financial circumstances, the deceased’s obligations, and the available assets in the estate.
| Factors the Court may consider | Examples |
|---|---|
| Your financial circumstances | Your income, expenses, assets, liabilities and future needs. |
| Your relationship with the deceased | The nature and length of your relationship and whether the deceased supported you. |
| The size of the estate | The value and type of assets available for distribution. |
| The needs of other beneficiaries | The circumstances of people who received benefits under the Will. |
| The deceased’s obligations | Whether the deceased had a responsibility to provide for you. |
Because every estate is different, receiving advice early can help you understand whether you have reasonable grounds to make a claim.
Time Limits for Contesting a Will in NSW
Family provision claims in NSW have strict time limits.
You generally must make an application within 12 months from the date of the deceased person’s death.
If you miss this deadline, the Court may refuse to allow your claim unless you can provide strong reasons for the delay.
If you believe you may have a claim, it is important to seek legal advice as soon as possible. Waiting too long may affect your ability to pursue an application.
You can review the relevant NSW legislation regarding family provision claims through the Succession Act 1989 (NSW).
What Should You Do If You Were Left Out of a Will?
If you believe you have been unfairly excluded from an estate, you should consider taking the following steps:
- Obtain a copy of the deceased person’s Will if possible.
- Gather information about your relationship with the deceased.
- Collect details about your financial circumstances and needs.
- Seek advice from an experienced estate litigation lawyer.
Having a copy of the Will allows your lawyer to better understand the deceased person’s intentions and assess whether you may have grounds to challenge the estate.
You should also avoid delaying action, as strict time limits apply to family provision claims.
Frequently Asked Questions About Contesting a Will in NSW
Can you contest a Will if you were left out?
These claims are commonly known as family provision claims. In NSW, they are governed by Chapter 3 of the Succession Act 2006 (NSW), which allows eligible persons to apply for a family provision order where adequate provision has not been made for their maintenance, education or advancement in life.
What is the difference between contesting a Will and challenging a Will?
Challenging a Will usually refers to questioning whether the Will is legally valid. Contesting a Will often refers to making a family provision claim seeking greater provision from an estate.
How long do I have to contest a Will in NSW?
In NSW, family provision claims generally must be made within 12 months of the deceased person’s death.
Can a child contest a parent’s Will in NSW?
A child of the deceased may be eligible to make a family provision claim. However, the Court will consider the child’s circumstances and whether the deceased had a responsibility to provide for them.
Do I need a lawyer to contest a Will?
You are not legally required to have a lawyer, but estate disputes can involve complex legislation, strict deadlines and significant financial consequences. Legal advice can help you understand your options and the strength of your claim.
Speak With a Lawyer About Contesting a Will in NSW
If you believe you have been unfairly left out of a Will or need advice about contesting a Will, our experienced estate dispute lawyers can help you understand your legal options.
We can provide advice about contesting a Will, family provision claims and estate disputes, helping you navigate your options and determine the best approach for your circumstances.
If you or someone you know wants more information or needs help or advice, contact us on (02) 4987 3344 or email [email protected].