When a loved one passes away and you feel their will doesn’t adequately provide for you, it’s natural to wonder whether you can challenge those wishes. In NSW, challenging a will through a family provision claim is a legal avenue available to certain eligible people, but the process involves specific requirements and considerations under the Succession Act 2006 (NSW).

If you’re one of our regular readers, you’ll have seen that we’ve been writing about wills and estate matters lately. Following our recent columns about contesting wills, we’ve received several calls from the community asking for more clarity on this topic. This explainer will help you understand when and how a will can be challenged in NSW.

What is a Family Provision Claim?

The legal term for contesting a will is known as a “family provision claim.” This process is governed by the Succession Act 2006 (NSW), which has dedicated sections specifically addressing these claims.

A family provision claim operates as a two-step process that determines both eligibility and merit.

Step 1: Are You Eligible to Make a Claim?

Not everyone can challenge a will. Section 57 of the Succession Act sets out who qualifies as an “eligible person.” These include:

• The deceased person’s husband, wife, or de facto spouse
• A natural child of the deceased person
• A former spouse of the deceased person (though these cases are rare and usually limited to former spouses who remained financially dependent after the relationship ended)
• A person who was wholly or partly dependent on the deceased and was either a grandchild or lived with the deceased at some point
• A person who was living in a close personal relationship with the deceased at the time of death

The second-last category typically captures stepchildren. However, stepchildren aren’t automatically eligible – they must have been dependent on and lived with the deceased person at some point to qualify.

Step 2: The Section 60 Factors

If you’re eligible to make a claim, the next step involves the “section 60 factors.” These are the criteria courts use to decide whether your claim will succeed.

Key Factors Courts Consider

The Nature of Your Relationship
Courts examine whether you had a close relationship with the deceased, any periods of estrangement, and the level of contact you maintained.

Obligations and Responsibilities
The law recognises that deceased persons have certain obligations. For example, spouses generally have a responsibility to provide for their surviving partner, and similar expectations apply when infant children are left behind.

The Size of the Estate
Courts consider whether the estate is large enough to provide for both the beneficiaries named in the will and the person making the claim.

Your Financial Resources
You must demonstrate some level of financial need. This doesn’t mean you need to be destitute, but if you’re financially well-off and can’t establish need, courts will rarely interfere with the deceased person’s wishes.

What This Means for You

Family provision claims involve careful assessment of complex legal and personal factors. Whether you’re defending a claim as an executor or believe you may be eligible to make a claim, understanding these requirements is crucial for protecting your interests.

Need Help With a Will Dispute?

If you’re dealing with questions about challenging a will or defending against a family provision claim, we’re here to help. As Penrith’s trusted legal team, we understand that estate disputes involve both complex legal issues and deeply personal family matters.

Get in touch with us for an obligation-free consultation to discuss your options and understand your rights under NSW law.