If you have been left out of a Will in New South Wales (NSW), you may be eligible to contest it. In this section, contesting a Will refers to bringing a claim for provision from the estate of a deceased person (rather than challenging the validity of the deceased’s Will).

Contesting a Will is not the same as challenging a Will. With a Will challenge, you are challenging the validity of the deceased’s last Will. Whereas with a Will contest (commonly referred to as a family provision claim), you are arguing that you have not been adequately provided for your proper maintenance, education and advancement in life in the last Will of the deceased and provision or further provision should be made for you from the deceased’s estate.

If you wish to contest the Will of a deceased person in NSW, proceedings must be commenced within 12 months of the date of death of the deceased person. Proceedings are heard in the Supreme Court of NSW.

If proceedings are not commenced within 12 months of the date of death of the deceased person, you need to seek an order from the Court that there is sufficient cause to bring an out of time application or the parties to the proceedings need to consent to your out of time application.

Pursuant to section 57 of the Succession Act 2006 (NSW), certain people are eligible to contest the deceased person’s Will. Eligible persons include:

  • the spouse or de facto partner of the deceased at the time the deceased died;
  • the deceased’s children;
  • a former spouse of the deceased;
  • any person who was:-
    • dependent on the deceased; and
    • a member of the household of the deceased, or a grandchild of the deceased;
  • a person who lived with the deceased in a close personal relationship at the time the deceased died.

In NSW, step-children are only eligible to contest the Will of a deceased person if they lived with the deceased at a particular point in time and were dependent on the deceased.

The last three categories of persons listed above must also establish that there are factors warranting the making of their application. These factors elevate the applicant to the status of an eligible person, that is someone who the testator had a moral obligation to provide for in their last Will. For example, financial dependence and a continuing relationship with the deceased may be factors that warrant the making of an application pursuant to Chapter 3 of the Succession Act 2006 (NSW) by a former spouse of the deceased. Another example of factors warranting the making of an application is if a grandchild can prove that they were dependent on their deceased grandparent and their grandparent was more akin to a parent to the applicant.

The Court may consider various factors when determining whether or not an applicant has been adequately provided for in the deceased’s Will. These factors are set out in section 60 (2) of the Succession Act 2006 (NSW). They include the following:

  • the relationship between the applicant and the deceased;
  • whether the deceased owed any obligations or responsibilities to the applicant, any other applicant or beneficiary of their estate;
  • the nature and value of the deceased’s estate;
  • the financial resources and needs of the applicant, any other applicant or any beneficiary of the deceased’s estate;
  • the financial circumstances of any person cohabiting with the applicant;
  • the applicant’s age and health circumstances;
  • any contribution made by the applicant to the deceased’s estate or welfare;
  • any provision made by the applicant during the deceased’s lifetime;
  • the testamentary intentions of the deceased;
  • whether the applicant was being maintained by the deceased before he or she died;
  • any Aboriginal or Torres Strait Islander customary law;
  • any other matter the Court considers relevant.

Ultimately the Court will consider the evidence before it and determine whether or not an applicant has been adequately provided for in the deceased’s last Will and if not, the quantum of provision (if any) that should be awarded to the applicant from the deceased’s estate.

If you have any questions about contesting the Will of a deceased person, or defending a Will contest, please contact de Groots wills and estate lawyers by telephone on (02) 9101 7000 or visit our website to get started online. Our experienced team of lawyers are ready to assist you with your estate litigation enquiries.