A will is a vital document that dictates how your estate is distributed when you pass away. From who gets what, to when gifts are received, it’s an outline of your intentions for how you wish things to be handled when you are no longer around. So, generally, when we talk of contesting a will, we often focus on the perspective of the estate and the negative implications implied when going against someone’s intentions in a will. 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, sometimes people are owed more adequate provision under a will and have the right to contest its’ contents. Let’s now take a look at this from the other side, in regards to the process of contesting a will in NSW. Whilst this information certainly does not take the place of seeking professional advice, in having an understanding of what is involved, you can work together with your professional advisors towards achieving a successful outcome.
Am I eligible to contest a will in NSW?
If you are not happy with what you have (or haven’t) been allocated in a will, you may be able to contest. If that is the case, the first question that needs to be asked is are you eligible to contest a will in the jurisdiction of NSW?
In NSW, you can make a claim on a will if the following criteria apply:
- You are deemed an eligible person; and
- are left out of a will; or
- 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.
Notably an eligible person is one of the following:
- a child
- a spouse (married or de facto)
- a former spouse
- any person wholly or partly dependant on the deceased person
- a person who had a close personal relationship with the deceased at their time of death
The Court’s Considerations when you contest a will in NSW
If you fulfill the above ‘contesting’ criteria, it is important to know what the court will consider in your claim. 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.
Understanding your rights and obligations and navigating complex legal documents and process can be challenging at the best of times. This is made even more challenging when the emotions of losing a loved one are involved too. The experienced team of lawyers at The Quinn Group provide advice across a wide range of will and estate related matters. We can assist you to draft your will and structure your estate in order to best protect it from a potential claim. We can also assist an individual or estate through the process of a family provision claim should a claim be brought, or need to be brought.
For expert advice in regards to contesting a will in NSW, or for assistance in relation to any will or related estate matter, contact our team of experienced probate, wills and estates lawyers via an online enquiry or by calling our office on 1300 QUINNS. You can also download a copy of our FREE eBook, The Definitive Guide to Wills and Estates in NSW and our Will Kit to assist with preparing your will.
Related YouTube Video
In the video Frequently Asked Questions about Wills and Estates, Patrick Lopes, lawyer of The Quinn Group discusses your frequently asked questions in relation to wills and estates. This video is part of our suite of videos on wills, estates and probate helping you to understand your rights and obligations.