If someone you love has passed away and you feel inadequately provided for in their will, you may be wondering whether you have any legal options. Understanding when and how you can challenge a will in NSW can help you make informed decisions during what’s already a difficult time.
Who Can Contest a Will in NSW?
Under the NSW Succession Act, only specific people have the right to make what’s legally known as a “family provision claim.” Section 57 of the Act clearly defines who can challenge a will:
- The spouse or de facto partner of the deceased
- Natural or adoptive children of the deceased
- Anyone who lived with the deceased and was dependent on them
There are some additional limited categories outlined in section 57, but these cover the majority of situations where someone might have grounds to contest a will.
It’s important to understand that being eligible to make a claim is only the first step. Eligibility doesn’t guarantee success.
What Factors Do Courts Consider in Will Disputes?
When determining whether a family provision claim will succeed, NSW courts examine several key factors outlined in section 60 of the Succession Act:
Financial Need
This is typically the most crucial factor. You must demonstrate genuine financial need to have a reasonable chance of success. However, financial need doesn’t mean you need to be destitute. A wealthy person with significant assets and income will find it much harder to succeed in a claim.
Relationship with the Deceased
Courts examine the nature and quality of your relationship with the deceased, including whether any estrangement existed and the circumstances surrounding it.
Size of the Estate
The court considers whether the estate is large enough to provide adequate provision for all potential claimants while still respecting the deceased’s wishes.
Common Misconceptions About Will Disputes
Myth: Small Bequests Prevent Claims
Many people believe that leaving someone a token amount (like $5,000) prevents them from contesting the will. This is incorrect. While existing provisions under the will are relevant to the court’s consideration, they don’t prevent someone from seeking a larger share of the estate.
Myth: Estates Must Be Divided “Fairly” or “Equally”
The Succession Act doesn’t aim to ensure equal distribution of estates. Instead, it focuses on whether each eligible person has been adequately provided for based on their financial circumstances and relationship with the deceased.
The Role of Executors in Will Disputes
If someone makes a family provision claim against an estate, the executor has a responsibility to defend the estate on behalf of the deceased. This involves responding to the claim and presenting evidence about why the will should stand as written.
Time Limits for Will Disputes
It’s worth noting that there are strict time limits for making family provision claims in NSW. Generally, you must commence proceedings within 12 months of the deceased’s death, though courts can grant extensions in exceptional circumstances.
Getting Legal Help with Will Disputes
Will disputes can be emotionally challenging and legally complex. Whether you’re considering making a claim because you feel inadequately provided for, or you’re an executor facing a challenge to an estate, professional legal guidance is essential.
At Complete Legal, we understand that will disputes often arise during already difficult times for families. We’ll explain your options in plain English and help you understand the likely outcomes based on your specific circumstances.
Need someone to have your back with a will dispute? Contact Complete Legal today for a consultation. We’re Penrith’s trusted legal team, and we’re here to help you navigate this challenging situation with confidence and clarity.
