In NSW, you can divide your estate as you see fit but challenging or contesting a will under the Succession Amendment (Family Provision) Bill 2008 can only be done by certain ‘eligible persons’. If the will excludes or does not make adequate provision for ‘eligible persons’ to whom the deceased owes a moral obligation, a will can be overridden by the court.
When can a will be challenged?
The law allows a will to be challenged under certain circumstances. This may be on grounds that the deceased was not of a sound mind when they wrote the will, they were unduly pressured to make the will or the will does not fulfil legal requirements including not being signed by two witnesses or being witnessed by a beneficiary of the will. The law provides you with a right to dispute a will if you believe that you have not been adequately provided for. However, not everyone can contest a will. To be able to challenge a will and bring an action against the estate of a deceased person, you must fall within one of the categories of ‘eligible persons’ as defined below.
Who is eligible to contest a will?
- The wife, husband or de facto partner of the deceased person at the time of their death.
- A former wife or husband of the deceased.
- A child of the deceased person whether this is the deceased’s biological child or an adopted child. A step child is not automatically deemed an ‘eligible person’. They must establish they are an ‘eligible person’.
- who was, at any particular time, wholly or partly dependent upon the deceased person, and
- who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member
- A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
What is moral obligation?
Once you have established that you are an ‘eligible person’ and demonstrated a relationship to the deceased, you must establish moral obligation. This means that you must prove to the court that the deceased person was morally obligated to provide for your maintenance, education and advancement in life. The court will review your case and if necessary it will alter the will. Spouses, de facto partners and children, particularly children in their infancy or with a disability, will generally have the strongest claims to the estate. Nevertheless even if you were estranged from the deceased at the time of death, this does not prevent you from making a claim on the will.
Seeking Legal Advice – how and when?
It is best to seek legal advice when considering contesting a will to assess whether you have a rightful claim to the estate. Provided that your challenge is not unreasonable or unfounded, the cost of making a claim (including some of our legal costs), even if it is not successful, may be paid for out of the deceased’s estate. An application to contest a will must be made within 12 months of the death. Please contact our will dispute lawyers in Sydney during business hours on 1800 770 780 if you require advice in relation to contesting a will
, if you are an executor or beneficiary of a will and want to defend a will or you require assistance on how to write or review your will. If you need any assistance with this topic, please contact us