Contesting a Will Under the Family Provision Act

The law in New South Wales allows for immediate family members to contest a will if the deceased did not adequately provide for their care. Written under the Succession Act of 2006, family provision claims can be made on the deceased’s estate if an eligible person contests the will.

Who Is Considered Eligible to Contest Wills?

While mostly immediate family members are eligible to contest a will, there are some exceptions. Eligible people include the following:

  • the surviving spouse,
  • a de facto partner who was living with the deceased at the time of death,
  • a former spouse,
  • a child of the deceased,
  • a grandchild who was partially or totally dependent on the deceased for their care,
  • anyone else who was partially or totally dependent on the deceased for care and who was a member of their household, or
  • someone who had a close relationship with the deceased, who lived with them, or who provided mutual care and domestic support without being paid to do so.

Contesting a Will

A Family Provision claim in NSW can be made if the deceased lived in NSW at the time of their death and owned assets in the state. A claim can also be made if they lived elsewhere but owned assets in NSW. An attorney experienced in handling wills can help an eligible person contest a will if they are not happy with the amount that was left to them.

Although a claim may be made by an eligible person, it doesn’t guarantee success. The court will consider what, if anything, was awarded to the person, how much support was provided by the deceased, and their current ability to care for themselves. For instance, a spouse who has a good job may not be successful in their claim, but a child who the deceased financially supported while in school may be successful.

Claims Without a Will

If the deceased died intestate, meaning without a will, a claim can be made against the estate by eligible parties. Usually, the court uses a formula to distribute any assets the deceased had, but if a family provision claim is made, they will consider other factors. It will depend on the current financial position of the person making the claim, and if they were dependent, whether in part or in whole, on the deceased.

The time limit to contest a will is 12 months after the deceased’s date of death. The time limit is strictly adhered to, so if you think you may have a claim, you need to contact a lawyer for advice right away. If they think your claim is valid, they can help you file an application under the Family Provision Act.

Although an eligible person, such as a child, can be disinherited, the will can still be contested by the child after the deceased’s death. The court will consider the deceased’s level of support, the child’s financial circumstances, their behaviour or estrangement from the parent, and other factors to determine if their claim is warranted. An attorney can help you get what is rightfully yours by properly contesting a will.