The death of a loved one often brings not only grief but also questions of fairness when it comes to inheritance. If a will appears to have left you, or someone close to you, without adequate provision, the law provides avenues to challenge the document.
Who Can Challenge a Will?
In New South Wales, an eligible person may bring a family provision claim under the Succession Act 2006 (NSW). Eligible persons generally include spouses, de facto partners, children, and in some cases, dependants or those living in a close personal relationship with the deceased.
Grounds for Challenge
A will may be challenged on several bases:
i. That the deceased failed to make adequate provision for an eligible person’s proper maintenance, education, or advancement in life.
ii. That the will is invalid due to lack of testamentary capacity, undue influence, or failure to comply with formal requirements.
What the Court Considers
When deciding whether to alter the terms of a will, the Court considers:
i. The nature and duration of the relationship between the applicant and the deceased.
ii. The applicant’s financial needs, health, and earning capacity.
iii. The size of the estate and competing claims of other beneficiaries.
iv. Any contributions made by the applicant to the welfare or estate of the deceased.
Example
If an adult child who was financially dependent on the deceased is excluded from a will, the Court may order provision from the estate to ensure that child’s ongoing needs are met. Conversely, if an independent adult child with no financial need challenges the will, the Court may decline to make any order, respecting the deceased’s freedom of testamentary choice.
Practical Next Steps for Contesting A Will
If you believe a will has failed to provide for you, it is essential to act promptly. Time limits apply, and early legal advice can clarify whether a claim is viable. The Court will ultimately balance fairness to the applicant with the testamentary freedom of the deceased.
