The death of a loved one or family member is a difficult and trying time. In certain instances, these times can be even more difficult if you feel like you have not been fairly accounted for in your loved one’s will. Contesting a will is a complicated process, best left to the professionals, but we’ve answered some of the most common questions when it comes to contesting or challenging a will in NSW.
What is a will?
A will is a legal document that communicates the last wishes of the deceased. It will generally identify the people who will receive a share of the estate (beneficiaries) and the nature of what is to be gifted to those people.
When you contest a will, you are making a formal and legal objection against the will’s validity. This may be due to the fact that the will is not an accurate reflection of the deceased’s intentions, or that the will is unfair and excludes people who should have been provided for.
What happens if I choose to challenge a will?
Generally speaking, there are three things that happen in a will dispute.
- The Court will decide if you are eligible to contest the will
- The Court will determine whether you have received “adequate provision”
- The Court will direct if different provisions should be made other than what is in the will
Who can contest a will?
According to the Succession Act 20016 (NSW), you may be entitled and eligible to contest a will if you are:
- A spouse of the deceased
- A former spouse of the deceased
- A de-facto partner of the deceased
- A same-sex partner of the deceased
- A child of the deceased (or child the deceased was responsible for)
- A grandchild of the deceased
- A dependent of the deceased
- A person living with the deceased in a close and personal relationship at the time of their death
What is an “adequate provision”?
Once the Court has determined that you are eligible to dispute the will, it will then look at whether you have been left with an adequate amount of assets. The term “adequate” may seem quite vague, so the Court will consider a range of factors including:
- The nature and duration of your relationship with the deceased
- Your personal needs and means of support
- Any financial, domestic or caring contributions you made to the deceased
- The size of the estate
- Your age, character and conduct before and after the death of the deceased
- Any mental, physical, or intellectual disabilities you may have if you were a dependent of the deceased
- Whether you were fully or partially dependent on the deceased
- Any obligations the deceased might have had towards you
- Anything else the Court considers relevant to its decision
When can I challenge a will?
If you are living in NSW, you must contest a will within twelve months of the will-maker passing away. After a year, things become more complicated and you will need to get permission from the Court to proceed.
If you feel like you have been unfairly left out of a will or are receiving less than you should, it’s important to get in touch with a lawyer as soon as possible. Challenging a will is an emotional and stressful experience, and gathering evidence and navigating the legal process can also be incredibly complicated. That’s why it’s crucial to enlist the guidance of a professional to help you through this trying time.