The passing of a loved one is a particularly emotional and devastating time. This can be made all the more horrific if there is any kind of dispute against the Will of the deceased. Disputes often arise when parties that are associated with the deceased person disagree with the intentions as contained in the Will. In NSW, you have to meet certain criteria in order to be eligible to contest a Will. If the Will excludes or does not make adequate provision for ‘eligible persons’ to whom the deceased owes a moral obligation, a Will can be overridden by the current legislation. Applications must be made within 12 months of the death.
In NSW, you can challenge a Will if you believe that it has not adequately provided for your maintenance, education and advancement in life. For matters where the deceased passed away after 1 March 2009 you must be a person listed below in order to be eligible to contest a Will under the family provision chapter of the Succession Act:
• The wife or husband of the deceased person at the time of their death (this includes de-facto partners and life partners).
• A child of the deceased, or a child of a domestic relationship with the deceased.
• A former wife or husband of the deceased.
• A person who was at any particular time wholly or partly dependent on the deceased and was at that particular time or any other time a member of the deceased household.
• A grandchild who was at any particular time wholly or partly dependent on the deceased.
• A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
This was to ensure that adequate provision is made for certain defined eligible persons, whether or not there was a will and whether or not the eligible person was mentioned.
A Will can be challenged under the following circumstances:
Undue Influence & Duress – A person can only make a valid Will if that Will is made by them freely and voluntary. As a result, if someone attempted to influence the terms of the Will or if physical, psychological or threatening duress was placed upon the deceased the Will can be contested.
Incapacity – A Will can also be challenged if the deceased lacked the necessary legal capacity to make the Will. This means that the deceased did not understand the nature and effect of a Will they were making, or were unable to make rational decisions regarding the distribution of their property. This situation most frequently occurs in relation to the elderly, people in frail health, or those suffering from an illness which affects their mind.
Contract to Make a Will – In some situations, people (usually married or de facto couples) may choose to enter into a binding contract to make their Wills in a certain way. This presents problems if one of them makes a Will later on, which is inconsistent with the contract; often without telling the other contracting party about their new Will, or if the other person has passed away. Where the contract regarding the making of the Wills has been properly drafted and is legally enforceable, persons affected by a breach of the contract may be entitled to make a claim for damages or other relief from the court.
If you think you are eligible to contest a Will and would like more information please submit an online enquiry to our experienced team of lawyers here at The Quinn Group. You can also call us on 1300 QUINNS (784 667) or on +61 2 9223 9166 to book an appointment.