Losing a family member or a loved one is an incredibly difficult time. In some situations, the death of someone close to you is made even more challenging when you believe you haven’t been fairly accounted for in that person’s will.
In NSW, you are entitled to challenge or contest a will under a family provision claim. Below, we’ve answered some of the most common questions when it comes to contesting or challenging a will in NSW. Keep in mind, though, that it’s best to seek advice from legal professionals if you are considering contesting a will.
What is a will?
A will is a legal document that outlines the wishes of the deceased in regards to distribution of his or her assets. It typically covers the nature of the assets, the people who are entitled to receive those assets (beneficiaries), and who is responsible for carrying out the person’s wishes (the executor).
When you contest a will, you are claiming that the will is unfair and excludes people who should have been accounted for, or that the will does not reflect the deceased’s intentions at the time of his or her death.
What happens if I contest a will in NSW?
Typically, a will dispute starts with the legal professional acting for you writing to the estate saying you intend to bring a claim. Sometimes the executor may make an agreement to settle your claim at that early stage, and no legal proceedings need to be commenced in court.
However, usually the estate will not settle at this stage, and it will be necessary for your lawyer to issue a claim in the Court by issuing an Application where:
- The Court will decide if you are eligible to contest the will
- The Court will determine whether you have received “adequate provision”
- The Court will pass judgement on what provisions should be made
Am I entitled to challenge a will?
According to the Succession Act 2016 (NSW), you may be entitled and eligible to contest a will if you are:
- A spouse of the deceased
- A former spouse of the deceased
- A de-facto partner of the deceased
- A same-sex partner of the deceased
- A child of the deceased (or child the deceased was responsible for)
- A grandchild of the deceased
- A dependent of the deceased
- A person living with the deceased in a close and personal relationship at the time of their death
What is an “adequate provision”?
If the Court finds that you have grounds to dispute the will, it will then consider whether you have been left with a reasonable amount of assets (adequate provision). In making a decision, the Court will considers factors such as:
- The nature of your relationship with the deceased and how long you knew him or her
- Financial, domestic or caring support you offered to the deceased
- The scope of the estate
- Your personal needs and means of support
- Your age, character and conduct before and after the deceased’s death
- Whether you were wholly or partially dependent on the deceased, and if dependent, any mental, physical or intellectual disabilities you have
- Any obligations the deceased may have had to you, or any other factors the Court considers relevant to its judgement
How long do I have to challenge a will?
In NSW, you must submit a family provision claim (contest a will) within 12 months of the will-maker’s death. The Court may also grant an extension of time if you can show that there is sufficient cause for making a late application.
What are the next steps?
If you believe you have not been fairly accounted for in a will or that a will does not accurately reflect the deceased’s wishes, it’s advisable to speak with a lawyer as soon as possible.
Contesting a will in NSW is a complex and often-stressful process, which is why it’s important to enlist the guidance of legal professional who can offer support throughout the process.
Get in touch today to organise a free consultation to discuss your needs, or view our NSW will dispute checklist to see if you could be eligible.