Can A Niece Or Nephew Contest A Will? | Armstrong Legal

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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Can A Niece Or Nephew Contest A Will?


Estate law privileges the right of spouses and children to dispute the last wishes of a deceased, with limited provision for other claimants. There is no succession law in Australia that directly references the right of a niece or nephew to contest a will. The child of a sibling of the deceased can only make a claim against an estate in certain jurisdictions in Australia, and only if they meet other eligibility criteria. This article outlines the provisional allowance in Queensland, Victoria, and New South Wales legislation for a niece or nephew to contest a will.

Succession Law For Nieces And Nephews

Under Australian succession law, a niece or nephew is the child of the deceased’s sibling. The Supreme Court of Victoria recently confirmed in Weston v Donaldson [2018] that the child of a brother or sister in law is also a niece or nephew for the purposes of contesting a will. Broadly, a niece or nephew is only eligible to contest a will if they are able to substantiate certain elements of their relationship with the deceased.

Dependency

Dependency is one of the major factors that define eligibility to claim against an estate. To qualify in this respect a claimant must have been dependent upon the deceased for financial support or maintenance.

In Queensland and New South Wales, an adult niece or nephew who lived with their aunt or uncle and either gave or received care can contest a will. The Succession Act 1981 (Qld) and the Succession Act 2006 (NSW) allows someone who was living in a close personal relationship with the deceased to make a claim against the deceased estate. A “close personal relationship” is between two adults who live together but are not married or in a de facto relationship, where at least one of the pair provides domestic or personal care for the other party. A niece or nephew may well fit the definition of someone in a close personal relationship with the deceased as this type of relationship can be formed between two people who are either related through kinship or are not related at all.

There is a similar provision in the Administration and Probate Act 1958 for a niece or nephew who was a caregiver for the deceased to contest a will in Victoria, but only if this relationship was recorded on the Relationships Register. A registered caring relationship according to the Relationships Act 2008 is between two adults who may or may not be related, but are not a couple, where one or both individuals provide financial or personal support for the other. It is essential for eligibility purposes that this support was not given in return for financial reward. Unlike the provisions in Queensland and New South Wales, a niece or nephew who is in a registered caring relationship in Victoria does not have to live in the same household as the deceased to qualify as an eligible claimant.

Cohabitation

It is not uncommon for extended family members to reside in the same home, whether the situation is a temporary or permanent arrangement. In Victoria, a niece or nephew can contest a will if they lived in the deceased’s household, or lived with the deceased at some point in the past and intended to reside with the deceased again in the future. It will be necessary for the niece or nephew to provide evidence to the court in support of the claim of former and/or anticipated cohabitation. A claimant can establish this residency requirement through, for instance, official documentation showing address. There is a similar provision in Queensland and New South Wales for a niece or nephew who cohabitated with their aunt or uncle to be able to contest their relative’s will. However, in addition to having resided with the deceased, there is an additional requirement in these states for the claimant to also have been financially dependent on the deceased.

Even in the event that a niece or nephew can establish eligibility to contest a will in Australia, the claimant needs to establish strong grounds to justify disturbing the provisions of the existing will. A niece or nephew is not an automatically eligible person to contest a will because there is no presumption that a testator has a moral responsibility to provide for their sibling’s child. To overcome this obstacle, a claimant must prove that their entitlement to provision from the deceased estate exceeds the rights of the existing beneficiaries.

There is limited provision for a niece or nephew to contest a will in Australia. The contested wills team at Armstrong Legal can advise you on your right to claim given your circumstances and the legislative provisions in your state or territory. Please contact our team to discuss your case or telephone our offices on 1300 038 223 to make an appointment.

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