Contesting a Will in NSW: Who Is Eligible and What Happens Next?
It can be distressing to discover that a family member's will does not make the provision you expected. It can be equally distressing for an executor who is trying to respect the deceased person's wishes while responding to a claim. NSW law provides avenues for certain people to seek provision from an estate, but disagreement with a will is not, by itself, enough to establish a claim.
What does it mean to contest a will?
People often use the phrase “contest a will” to describe different legal issues. One is a family provision claim, where an eligible person asks the court to make an order for provision from the deceased person's estate. Another is a dispute about whether the will itself is valid, for example because of capacity, execution or influence concerns. These are distinct legal questions requiring different evidence.
Who is eligible to bring a family provision claim in NSW?
The Succession Act 2006 (NSW) identifies categories of eligible persons. These include certain close family relationships and, depending on the circumstances, other people who had particular dependency or household connections with the deceased. Eligibility is only the beginning: the court also considers whether adequate provision was made for the claimant's proper maintenance, education or advancement in life, along with the relevant circumstances.
Can a grandchild contest a grandparent's will?
Potentially, but being a grandchild does not automatically create eligibility. The circumstances of dependency or a qualifying household relationship can be important. A grandchild who received regular support from a grandparent may be in a different position from one who had no dependent relationship. The precise facts matter, and it is unwise to assume either that a claim is guaranteed or that it is impossible.
What factors might the court consider?
Issues can include the nature and duration of the relationship, financial need, contributions, competing claims, the size of the estate and the deceased person's circumstances and reasons. There is no simple percentage that every child, grandchild or partner is entitled to receive. Each case depends on the legislation and evidence.
Is there a time limit?
Family provision applications in NSW are generally required within 12 months of the date of death, subject to the court's ability to allow an application out of time in particular circumstances. Deadlines should be checked promptly. An executor who becomes aware of a potential claim should obtain advice before distributing assets.
How can families reduce the risk of disputes?
A well-considered estate plan cannot eliminate the possibility of a challenge. It can, however, clarify intentions and create a useful record of the decisions made. Discussing your wishes where appropriate, considering family relationships and obtaining tailored advice may reduce avoidable confusion.
What should a claimant or executor do next?
Preserve relevant documents, identify the estate's status and seek advice before deadlines expire or assets are distributed. An early understanding of the legal position can help people make more informed decisions about negotiation, mediation or proceedings.
Dawson Pouwhare advises on estate planning and estate matters, including disputes.
Legal disclaimer: This article contains general information about Australian and NSW law and is not legal advice. It may not reflect changes in the law or your individual circumstances. You should obtain advice about your situation before acting on this information.
