The death of a family member or loved one can be an incredibly difficult and stressful time, especially if you believe that you have been inadequately provided for in a Will – or if you have been left out entirely. In this situation, you may want to consider contesting the Will. To contest a Will, you need to ensure you are eligible and that you have legal grounds to do so.

Knowing how to contest a Will can be a lengthy and complicated process, so you will need to get in contact with an experienced Wills and estate lawyer.

contest a Will

Contesting a Will FAQ:

What is the main reason an individual may wish to contest a Will?

If a person feels that they have been left out of a Will or have not been provided for properly in the Will of the deceased.

A Will may be contested with the Courts under statutory measures, specifically Chapter 3 (Family Provision) of the Succession Act 2006 (NSW). Under this Act, an individual may make a claim on an estate of a deceased person. One of the following instances must apply in order for a claim to be made:

  1. If the deceased was permanently living outside NSW at the date of death, the owned real estate in NSW must be an estate asset
  2. If the deceased was permanently living in NSW at the date of death

There are certain legal grounds on which you can contest a Will. These include:

Duress of undue influence

Undue influence occurs when a party unfairly influences another to enter into a contract, and in this case, a Will. Undue influence can make a Will invalid, but these cases are difficult to prove and require clear evidence of behaviour that left the Will maker with no alternative but to make a Will a certain way.

Lack of testamentary capacity

A Will can be contested if the person who made it  lacked testamentary capacity at the time the Will was made. If this is the case, the court can refuse to admit the Will to probate. If this occurs, the person’s previous Will, made before the last Will, is admitted to probate. This is why it is often important not to destroy former Wills.

There are many cases dealing with testamentary capacity, and if a Will is challenged on this basis, the court will make a determination based on the evidence presented to it. If a person’s capacity is questionable perhaps due to frailty or illness, a medical report should be obtained prior to making the Will so that this issue will not be raised at the time the Will comes into action.

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On the basis of provision

A person can contest a Will on the basis of provision. The law permits certain categories of people to contest the provision that has or has not been made for them i.e. a child is left out of the Will. That child can bring an application to the court and the court has the power to make an award for that child if certain criteria are met.

Any eligible person who believes he or she has been left out of the Will of the deceased or has not been provided for properly in the Will regarding maintenance and support.

Under the Succession Act 2006 (NSW), Chapter 3 (Family Provision), the following persons are the types of individuals who are eligible to challenge an estate of the deceased:

  • A spouse married to the deceased at the time of death. This also includes a de facto partner (including a same sex partner).
  • Children.
  • Adopted children are eligible and artificially conceived children are irrefutably presumed to be the children of the woman bearing them provided that her husband or de facto spouse consented (which is irrefutably presumed) to the fertilisation procedure.
  • Stepchildren are eligible only if they can prove that they were dependent on the deceased.
  • Former spouses (in most cases, a final property settlement between spouses in matrimonial proceedings will present a late claim against the estate of a former spouse).
  • Persons who were at any time wholly or partly dependent on the deceased and who were members of the same household as the deceased.
  • A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.
  • Grandchildren. These individuals must prove to the Court that they were dependent on the deceased. The grandchildren must establish dependency of direct and immediate support from the deceased during their lifetime. Even if the deceased did not make provisions for grandchildren in the Will, they may still make a claim to challenge it. Examples of evidence that are usually unsuccessful in the claim are receiving frequent gifts from the deceased and incidental support.

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When contesting a Will, what other evidence may the Court consider?

  • The size of the estate of the deceased
  • The duration and nature of a relationship with the deceased
  • Obligations or responsibilities the deceased had to the applicant
  • Financial needs and circumstances of the applicant
  • Age of the applicant at the time of the hearing
  • Contributions made by the applicant to improve the estate of the deceased
  • Evidence of statements made by the deceased to the applicant prior to their death

An application for a Family Provision Order must be made and filed with the Registry of the Court within 12 months of the date of death of the deceased person. This time limit relates only to deaths that occurred on or after 1 March 2009.

Learn more: Contesting a Will time limit

If the date of death is uncertain, the Court is responsible for determining a reasonable date. If the time limit has passed, only with leave of the Court (which is only given in special circumstances) may an applicant be able to make a claim. Such a special circumstance might be that the applicant did not know the deceased had passed away.

What if the Will specifically states that a person can receive part of the estate only if they do not challenge it?

Even if the deceased had an explicit exception in his or her Will such as “I leave $10,000 to my partner only if he does not challenge my Will,” the statement would be void because ruling from the grave is not permitted by the Courts.

How much of the deceased’s estate may be given to a successful claimant?

The Court will determine the amount. It can depend on:

  • The financial position of both the estate and the applicant
  • If the applicant has a disability or illness (the Court might give that person more than what they would give to a non-disabled or successful applicant in good health).

Who pays for contesting a will?

One key point to contesting a Will, which is not included in the appropriate legislation, is that contesting a Will (NSW) is not free. However, if you don’t have the proper financial foundation to pay substantial legal costs upfront and if you are successful in your claim, those costs will usually be paid from the estate of the deceased.

Can a parent leave a child out of a Will?

You can leave your adult child out of your Will if they are able to adequately provide for themselves. However, adult children can contest a Will if they feel they’ve been unfairly left out.

Because of the Succession Act 2006 (NSW), you can’t ever stop someone from contesting your Will – especially if they are ‘eligible’. However, if you intend to omit somebody from your Will please get legal advice from a Wills and estate lawyer about what to do to safeguard your intentions.

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Speak to a lawyer before disputing a Will

Do you believe that you have been left out of a Will or have not received adequate provision? Are you in search of a law firm that is focused on fighting unfair Wills, protecting your interests and knows how to successfully contest a Will? If so, please contact Owen Hodge Lawyers for a free claims assessment on 1800 70 780.

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