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How to Stop Someone Contesting a Will (NSW)

A will is a crucial document that allows a testator to specify their wishes for their estate after their death. It is not, however, an inviolate document impervious to challenge or contest. The law in NSW, through the Succession Act 2006, provides an opportunity for an eligible person to dispute the provisions or validity of a will. This legal system is designed to ensure that testamentary and estate law is fair and just. Studies have found that nearly half of all wills in Australia are contested through Family Provision Claims, which suggests that the Australian public are well informed of their rights in inheritance law. Given the prevalence of contested estates, the question becomes “how to stop someone contesting a will?”

The answer, as this article explores, is that there is no way to prevent someone from contesting a will in New South Wales. It is possible, however, for a testator to take certain steps to limit the grounds for contesting a will and make arrangements before their death to gift assets so that they are not included in the deceased estate.

What Circumstances Allow For a Will to be Contested?

Unlike a challenge, where the validity of the will is questioned, a claimant contesting a will is disputing the distribution of assets in the will and claiming they received inadequate provision from the testator. A claimant must demonstrate that their financial needs were not met by the testator’s bequests.

The relationship between the claimant and the testator will be of central issue to the case, where the question is the level of moral obligation that the deceased had towards the claimant. The court will consider these factors in light of the provisions for other benefactors and their financial circumstances. Above all, the courts will assess the case based on what a “reasonably minded testator” would have done.

Who is an Eligible Person to Contest a Will in NSW?

In New South Wales, the list of people who are able to contest a will is limited to those that are biologically, personally or legally connected to the deceased. As such, the current and former spouse or de facto partner of the deceased can contest the will, and so can a child (whether biological or legally adopted) of the deceased, and anyone who was living with the testator and sharing a close personal relationship with them before they died.

The only other class of person that can contest a will is someone who was at least partially dependent on the testator for financial security. This last category includes grandchildren and stepchildren of the testator who are able to provide evidence of recurring financial support from the deceased.

How To Minimise the Chances of Someone Contesting a Will in NSW

The most effective way to stop someone contesting a will in NSW is to make adequate provision for anyone entitled to a share of the estate. When drawing up a will, the testator should keep in mind the legal principle that guides the court in these cases: “what would a reasonably minded person do?” It is also best to make a record of the consideration that was given to each beneficiary, with a justification of the bequests in light of the beneficiaries’ needs, both current and future.

This approach is unfortunately not a solution for a testator who wishes to exclude someone entirely from a will. In that case, there are other approaches that a testator can take to reduce the size of their deceased estate, and ensure that their assets are distributed according to their own wishes.

Structure Your Assets

For instance, a testator can nominate a recipient for their life insurance and superannuation payouts so that the funds are directly paid to the beneficiary and never included in the deceased estate. The testator can also gift their assets away before their death to their favourite charity, family or friends. It must be noted that this approach may impact the testator’s income support benefits and taxation. As jointly owned property and jointly held bank accounts are also not included as assets of the estate, one strategy is to add the name of the intended beneficiary to property and bank accounts. As a result, these assets will pass directly to the surviving owner upon the death of the testator.

Notional Estate Claim

There is a major caveat to the idea that a testator can dispense with their assets before death through gift, payout and joint tenancy. In New South Wales, a Family Provision claimant can also make a Notional Estate Claim against property that was not owned directly by the testator when they died. There are strict rules that apply to this type of claim: it is only available to claimants who are eligible to apply for a Family Provision Claim, and where the deceased left little to no assets in the deceased estate. The asset transfer must have caused disadvantage to the claimant, and have been transferred without full consideration of the asset’s value. If the court rules that an asset is part of the notional estate, then it is treated as if it was still part of the deceased estate, thereby extinguishing the legal rights of the new owner.

Time limits do apply to notional estate claims, as it only relates to property transfers that occurred upon or after the testator’s death, or up to a year before if the deceased had a moral obligation to the claimant stronger than the obligation to the recipient of the transfer. There is also a provision under the act for a notional estate claim against a transfer that happened up to three years before the death for any transfer that was motivated by a desire to prevent provision to an entitled person.

How to Stop Someone Contesting a Will: Next Steps

Armstrong Legal can advise you on the best methods to stop someone contesting a will. For expert assistance in drafting your will to safeguard your wishes, please contact our wills and estates team on 1300 038 223 or message us 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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