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Who Can Contest A Will in NSW?

The Succession Act 2006 sets out who can contest a will in New South Wales. This legislation privileges the rights of the spouse and child of the deceased and those who were financially dependent on the deceased. This article expands on the categories of eligibility for disputing a will in NSW.

Who Can Contest A Will In NSW?

Only close family members and certain dependents of the testator can contest a will in NSW. The Succession Act 2006 lists the close family members as de facto partners, spouses and former spouses, as well as children of the deceased. A dependent grandchild or member of the deceased’s household can also contest the will and so can someone in a close personal relationship with the deceased.

A Spouse Can Contest A Will In NSW

Under succession law, a husband or wife has priority to inherit from their deceased spouse, and an unconditional right to dispute their spouse’s will. A spouse can contest a will in every jurisdiction in Australia because the law views a spouse as the most natural beneficiary of the assets acquired over the course of a marriage. In fact, even a former husband or wife has the right to contest a will in NSW if they feel that the testator has treated them unfairly in the will. Regardless of how long ago the divorce was finalised, the ex-spouse can claim that the testator had a moral responsibility to provide for them. It is ultimately up to the Supreme Court of NSW to decide whether a former spouse’s claim is valid.

Can A De Facto Partner Contest A Will In NSW?

A de facto relationship is distinct from a marital or other familial relationship. Succession law in NSW refers to the Interpretation Act 1987 for the definition of de facto relationships: it is between two individuals who live together on a genuine domestic basis. Under NSW succession law, a de facto partner has the same rights as a married partner to inherit from and to contest, the will of a partner.

Unlike a marriage, which is established through documentation, a de facto relationship must be proved. A de facto couple can prove their relationship through registration, or through demonstration of certain characteristics of a de facto union, such as:

  • the couple have cohabitated for at least two years
  • there has been a sexual relationship
  • there are children from the relationship
  • the couple share responsibility for children and housekeeping
  • the couple share a residence
  • there is financial interdependence between the couple
  • there is a shared commitment to building a life together
  • they are an accepted couple in their community
  • there is joint ownership or use of each other’s property

Common law has established that while these are defining characteristics of a de facto relationship, not all factors are necessary and no one factor is more definitive than another. It has also been confirmed that someone can be in a de facto relationship with someone while still being married to another person.

A Child Can Contest A Will In NSW

If a child of the deceased feels that their parent unfairly excluded or insufficiently provided for them, the child has an unconditional right to contest the will. A child, under succession law, includes a biological child, an adopted child, and a “presumed child” according to the definition outlined in the Status of Children Act 1996. It also includes any child that the deceased had parental responsibility for before their death.

Who Else Can Contest A Will In NSW?

A grandchild or member of the deceased’s household is only an eligible party to contest a will if they can prove they were also dependent on the deceased. This dependency must be of a degree that transcends the traditional level between housemates or grandparent and grandchild.

Someone that shared a close personal relationship with the deceased can also contest their will. A close personal relationship is between two adults, who may or may not be related by family, who live together, and where at least one party provides domestic support and personal care for the other party. This care is not relevant to eligibility if it was provided on a commercial or charitable basis. The cohabitation requirement does not need to be continuous, for instance, a temporary absence for hospitalization or other special circumstance will not invalidate the relationship. Examples of domestic and personal support include cleaning, cooking or shopping.

It can be difficult to understand whether you have the right to contest a will, or any likelihood to succeed with a Family Provision Claim. At Armstrong Legal, the contested wills team have the experience necessary to advise you on the best way to proceed. Please ring our offices on 1300 038 223 or contact us to make a first appointment to discuss your case.

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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