As with last week’s article on safeguarding your estate via a will, when we talk of contesting a will, we often focus on the perspective of the estate and the negative implications. It is perceivably a bad situation; jeopardising the value of the estate’s assets and a beneficiary’s entitlement to them due to the draining of funds from the estate, caused by expensive litigation. However, in this article, we will take a different approach. How can you contest a will and come out as a successful party?

Can I make a Claim?

Firstly, you can make a family provision claim if you are deemed an eligible person and are left out of a will, or alternately, received something in the will but did not receive what you felt you were entitled to. You have a time limit of 12 months from the date of death to lodge your contesting of the will. An application for family provision is made by filing a summons together with an affidavit in the Supreme Court of New South Wales.

The Court’s Considerations

If you fulfill the above ‘contesting’ criteria, it is important to know what the court will consider. Before making an order they will examine:

  • the relationship between the applicant and the deceased person
  • any obligations or responsibilities owed by the deceased person to the applicant
  • the value and location of the deceased person’s estate
  • the financial circumstances of the applicant, including their current and future financial needs
  • whether the applicant is financially supported by another person
  • whether the applicant has any physical, intellectual or mental disabilities
  • the applicant’s age
  • any contribution made by the applicant to increase the value of the estate
  • whether the deceased person has already provided for the applicant during their lifetime or from the estate
  • whether the deceased person provided maintenance, support or assistance to the applicant
  • whether any other person is responsible to support the applicant
  • the applicant’s character
  • any applicable customary law if the deceased were Aboriginal or Torres Strait Islander
  • any other claims on the estate
  • any other matter the court may consider as relevant.

Once the court has examined all of these areas, they may make an order. A family provision claim or wills claim may take a long period to play out in court; all of course, dependant upon the willingness of the parties to negotiate.

We at the Quinn Group not only can assist you in protecting your estate from a claim but can assist you in making one should you wish to. Keep an eye out for our article on contesting wills based on fraudulent signatures and testamentary incapacity. 

Need Help?

If you need assistance in relation to wills and estates or would like further information in this area, please feel free to contact our team of experienced probate, wills and estates lawyers by clicking here to submit an online enquiry or by calling our office on 1300 QUINNS. You can also download a free copy of our Wills and Estates book via our website.

Related YouTube Video

In this above video focused on wills and estates, Patrick Lopes, lawyer of the Quinn Group discusses your frequently asked questions in relation to wills and estates. This video is apart of their suite of videos on wills, estates and probate helping you to understand your rights and obligations.