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Grounds For Contesting A Will (NSW)

Many people believe that a testator’s last will and testament is an inviolate document that cannot be contested. This belief is based on the assumption that a person is entitled to bequeath their worldly goods as they see fit. On the contrary, in New South Wales there is legislative provision for a will to be disputed if the circumstances fit certain parameters. As such, an eligible person can make a Family Provision Claim within a year of the deceased death if they have sufficient grounds. This article examines these grounds for contesting a will in NSW.

Grounds For Contesting A Will: Family Provision Claim

Unlike a challenge to a will, which disputes the validity of the document itself, a contestation only occurs when someone disagrees with the testator’s distribution of the deceased estate. When an eligible person in NSW believes that they been unfairly excluded from a will, or that their provision is inadequate, they can lodge a Family Provision Claim with the Supreme Court of New South Wales. The best-case outcome for the claimant is that the court agrees that there are grounds for contesting the will, and the claimant receives either some provision from the estate or a larger portion than they already received.

Contesting a will is only possible when an applicant:

  1. Is an “eligible” person as defined by the Succession Act 2006.
  2. Makes a claim within 12 months of the death (unless given leave by the court to make a late application).
  3. Was unfairly left out of a will or received less than their due entitlement in the will.

Who is an eligible person?

Under section 57 of the Succession Act 2006, the only people who are automatically eligible to contest a will are the de facto partner of the deceased, the deceased’s spouse, any former spouse of the deceased, and a biological or adopted child of the deceased. A member of the deceased’s household or a grandchild can only apply if they were also a financial dependent of the deceased before he or she died. There is also allowance for application by someone who lived with the deceased and provided assistance to the deceased to quality to make a claim (as long as they provided the assistance without financial reward and not on behalf of a charitable institution). It is important to note that an eligible person must be a legally capable adult. A child or intellectually disabled person can only make an application through a legal proxy.

Who Has Priority When Contesting A Will?

The court will give priority to certain applicants, primarily based on the length of the relationship and how dependent the claimant was on the deceased. Typically, a spouse has the greatest claim on an estate, although this may depend on the duration of the relationship. For example, a spouse of several decades will have a stronger claim than a spouse within a newer relationship. A spouse will usually have a greater claim to provision than a child or any other family member. A younger dependent child will typically have a stronger claim than older children, and a disabled child has an even stronger claim to the estate. The rules that relate to the order of priority are complicated, so it is best to consult a solicitor for specialist advice.

What Are The Grounds For Contesting A Will?

According to Section 60 of the Succession Act 2006, there are specific grounds to claim against an estate. The applicant can assert that the provisions of the will are grossly unfair, but the court will not change a will on the basis of fairness alone. It is common, for example, for children from a former relationship to feel that they have been treated unfairly and received less provision than a current spouse or the children who lived with the deceased immediately before their death. However, the fact that an individual feels they have been treated unfairly will not result in a successful claim unless they can also establish other grounds for contesting the will.

Grounds For Contesting A Will: Financial Need

A significant ground for contesting a will is that the claimant has not been provided with a share of the estate that is adequate for their support and maintenance. The claimant must demonstrate that they have a financial need and that the deceased had a moral obligation to meet that need that they have not satisfied with the existing provisions. It is persuasive if the applicant can prove that they were a dependent of the deceased, who was partly or wholly maintained by the deceased before their death. A person who is financially secure is less likely to have a successful claim against the estate.

In addition, the applicant must demonstrate that their financial need is greater than the other beneficiaries of the will, or that the estate is sufficiently large that in the event that their provision is increased, it will not be to the detriment of the other beneficiaries. In fact, the overall size of the estate, and its assets and liabilities will be of central interest to the court.

Grounds For Contesting A Will: Relationship

An important consideration for the court is the relationship between the deceased and the claimant. If the two were supportive of each other, or the deceased promised or otherwise owed a responsibility to the claimant, then that will also be grounds for contesting the will. The court will also consider whether there is evidence that the deceased intended at one time for the claimant to have a larger share of the estate than is provided for in the current will.

Grounds For Contesting A Will: Applicant’s Circumstances

The court will focus on the circumstances of the claimant, particularly those that will impact their cost of living or capacity to earn income in the future. The financial resources of the claimant, such as salary and assets, are relevant, as are the financial circumstances of those who live with the claimant. The age of the applicant, their character and general conduct are also relevant. Any mental, intellectual or physical disability that impedes the claimant’s ability to earn income or increases the cost of living will be taken into account.

The contested wills team at Armstrong Legal can advise you on the most appropriate grounds for contesting a will given the circumstances of your specific case. Please call 1300 038 223 to talk over the options or contact our office to make an appointment.

Dr Nicola Bowes

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.

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