Introduction

Contesting a will in New South Wales is a complex legal process, particularly for those outside the immediate family. While spouses, children, and de facto partners have clear eligibility under the Succession Act 2006 (NSW), friends often face significant challenges when seeking to contest a will. The emotional and financial impact of being excluded from a will can be profound, making it essential to understand the legal framework that governs such situations.

This article will explore the specific criteria a friend must meet to contest a will in NSW, focusing on the legal requirements such as dependence and cohabitation. It will also discuss the role of family provision claims and the strict time limits involved. Whether you are considering contesting a will or simply seeking to understand your rights, this guide provides clarity and practical insights to help navigate this intricate process.

Contesting vs. Challenging a Will: What’s the Difference for a Friend?

If you are a friend of the deceased and feel you’ve been unfairly left out of their will, it’s vital to understand the difference between “contesting” and “challenging” it. These terms describe two separate legal actions, and your circumstances will determine which, if any, is appropriate.

Basis of the Claim	Contesting a Will (Family Provision Claim)	Challenging a Will
The Argument	“My friend’s will is valid, but they failed in their moral duty to provide for me, given that I lived with them and we cared for each other.”	“This document is not my friend’s true and valid will.”
The Goal	To persuade the court to alter the will’s distribution to provide you with a fair share for your support and maintenance.	To have the will declared legally void. The estate would then pass according to an earlier valid will or, if none exists, the laws of intestacy.
Common Grounds	As a friend, your grounds are proving you fit the strict legal definition of being in a “close personal relationship” (living together and providing care) or being a “dependent household member.”	Believing your friend was pressured by a relative (undue influence), was not mentally sound when they signed the will (lack of capacity), or that the signature was forged.

In simple terms, you contest a will when you are seeking fair provision from the estate because your relationship met a specific, high legal standard. You challenge a will when you believe the document itself is illegitimate.

This guide focuses on the extremely difficult process of contesting a will as a friend. If you believe your friend’s will is invalid due to coercion, fraud, or lack of capacity, you would need to explore the separate process of challenging the validity of a will.

Now, let’s examine the specific eligibility criteria a friend must meet.

Who Can Contest a Will in NSW?

Eligible Persons Under the Succession Act 2006 (NSW)

The legal framework for contesting a will in New South Wales is primarily governed by the Succession Act 2006 (NSW). This Act outlines specific eligibility criteria for individuals who can make a family provision claim to contest a will.

Under the Succession Act 2006 (NSW), several categories of individuals are automatically eligible to contest a will:

Eligible Person Category	Description / Eligibility Notes
Spouses and de facto partners	Automatically eligible to contest a will.
Children	Includes adopted and foster children.
Former spouses	Eligible provided they meet certain conditions.
Grandchildren	Must have been wholly or partly dependent on the deceased.
Members of the deceased’s household	Must have been dependent on the deceased.
Persons in a close personal relationship	Defined by the Act; eligibility requires additional proof of dependence or specific factors warranting a claim.

For individuals in the latter categories (former spouses, grandchildren, household members, or those in close personal relationships), eligibility requires additional proof. These individuals must demonstrate that they were dependent on the deceased or that there were specific factors warranting their eligibility to make a claim.

Understanding these criteria is essential for both those planning their estates and potential beneficiaries who may need to navigate this process.

The Role of Family Provision Claims

A family provision claim is the legal mechanism through which eligible individuals can contest a will. The purpose of such a claim is to allow the court to redistribute the deceased’s estate if it is deemed that the deceased failed to make adequate provision for the claimant’s maintenance, education, or advancement in life.

Key aspects of family provision claims include:

Aspect	Description
Notification of the Executor	Claimant must notify the executor or administrator of the estate of their intention to make a claim.
Application to the Supreme Court	If unresolved, claimant must file an application with the Supreme Court of NSW.
Court Discretion	Court may redistribute the estate based on claimant’s financial situation, estate size, and deceased’s wishes.

Family provision claims are not limited to financial dependents but also extend to individuals who were in a close personal relationship with the deceased, provided they meet the legal criteria. This approach ensures that the court can address situations where the deceased’s will does not reflect their moral obligations to certain individuals.

By understanding both the eligibility criteria and the process for making a family provision claim, individuals can better navigate the legal landscape surrounding will contests in NSW.

Criteria for a Friend to Contest a Will in NSW

The Dependence Requirement for Friends

For a friend to contest a will in NSW, they must demonstrate financial, material, or emotional dependence on the deceased. However, emotional support alone is insufficient; the friend must show that they received regular financial or material support from the deceased.

What constitutes dependence may include:

• Regular financial assistance for rent payments
• Ongoing material support for living expenses
• Consistent financial contributions to the friend’s needs

To establish a valid claim, the friend must provide concrete evidence such as:

• Bank statements showing regular transfers
• Documentation of shared financial responsibilities
• Records of financial support arrangements

Proving Cohabitation & Household Membership

A friend must prove that they lived with the deceased at some point, even if not full-time. This cohabitation requirement can be demonstrated through various forms of evidence, including:

• Shared address documents
• Utility bills in both names
• Other documentation showing a shared residence

The court carefully considers whether the parties regarded the same address as their home and whether they shared household responsibilities. For instance, if the friend helped maintain the deceased’s home or contributed to household expenses, this could significantly strengthen their claim of cohabitation.

Other Factors Affecting a Friend’s Claim Success

Even if a friend meets the eligibility criteria, the court considers additional factors when evaluating the claim. These considerations include:

Factor	Description
Deceased’s moral obligations	Court considers the moral duty of the deceased to provide for the friend.
Expressed wishes in the will	The intentions of the deceased as stated in the will are weighed.
Merit and strength of claim	The overall validity and persuasiveness of the friend’s claim are evaluated.
Needs of other beneficiaries	The court balances the friend’s claim against the needs of other named beneficiaries.

The court ultimately weighs the moral obligation to provide for the friend against the deceased’s intentions for other beneficiaries and the overall distribution of the estate. This balancing act determines whether the claim will succeed.

Time Limits for Friends to Contest a Will in NSW

There are critical time limits and conditions under which a friend may contest a will in NSW, emphasising the importance of prompt legal action:

Time Limit Aspect	Description / Conditions
12-month deadline	Claim must be lodged within 12 months of the deceased’s death; strictly enforced.
Exceptions	Possible only in extraordinary circumstances with valid reasons for delay.
Court’s discretion	Court must be convinced special circumstances exist and delay is reasonably justified.
Legal advice importance	Early consultation with a legal professional is crucial to navigate strict time limits and improve claim success.

A friend must lodge a family provision claim within 12 months of the deceased’s death. This timeframe is strictly enforced, though exceptions may apply in extraordinary circumstances. In such cases:

• The claimant must provide a valid reason for the delay
• The court must be convinced that special circumstances exist
• The delay must be reasonably justified

Seeking prompt legal advice is crucial to navigate these strict time limits and the complex process of contesting a will. Early consultation with a legal professional can significantly improve the chances of a successful claim.

Case Study: Khadarou v Antarakis

Case Facts & Claims

The case of Khadarou v Antarakis [2021] NSWSC 743 involved a friend who claimed eligibility to contest the deceased’s will based on a close personal relationship. The plaintiff provided extensive support to the deceased, including:

• Regular care through cooking meals
• Assistance with shopping
• Maintenance of the deceased’s car

Additionally, the plaintiff acted as the deceased’s next of kin during hospital admissions, which highlighted a significant level of involvement in the deceased’s life. However, despite these considerable efforts, the friend did not reside with the deceased—a factor that would later prove crucial in the court’s decision.

Court’s Analysis: Personal Relationship & Cohabitation

The court thoroughly examined whether the relationship met the legal criteria for a close personal relationship under the Succession Act 2006 (NSW). While the plaintiff clearly demonstrated regular support and care, the absence of shared residence became a determining factor in the case.

The court ultimately concluded that the relationship, though undeniably close, did not fulfil the cohabitation requirement necessary for eligibility. This decision emphasised the importance of living together as a key component in establishing a close personal relationship under the law.

Case Outcome & Key Lessons

The court dismissed the claim, specifically highlighting that the friend did not meet all eligibility criteria, particularly the requirement of living together. This case illustrates several important lessons for friends considering contesting a will:

• The challenges friends face in such legal proceedings
• The necessity of fulfilling all legal requirements, including both cohabitation and domestic support
• The stringent criteria that must be met to successfully contest a will in NSW

This case serves as a significant reminder of how strictly the courts interpret the eligibility requirements for friends contesting wills in New South Wales.

How to Make a Family Provision Claim in NSW

Notifying the Executor & Administrator

The first step in making a family provision claim is to notify the executor or administrator of the estate of your intention to contest the will. This notification is a mandatory step before you can proceed with filing a formal application to the court.

When notifying the executor, consider these key points:

• Time Limits: You must notify the executor within 12 months of the deceased’s death. This timeframe is strictly enforced, though exceptions may apply in extraordinary circumstances.
• Required Documentation: You should provide written notice of your intention to make a claim, including your eligibility and the grounds for contesting the will.
• Mandatory Step: This notification is a legal requirement that must be completed before filing a formal application with the court.

Filing with the NSW Supreme Court

After notifying the executor, the next step is to file a formal application with the Supreme Court of NSW. This application will outline your case for why you believe the will does not make adequate provision for you.

When filing your application, be aware of these important considerations:

• Application Process: Your application must be filed within the same 12-month period as the notification to the executor. Missing this deadline may result in losing your right to contest the will.
• What the Court Considers: The court evaluates several factors when deciding whether to redistribute the estate, including:
  • The deceased’s moral obligations to you
  • The deceased’s wishes as expressed in the will
  • The financial needs of all beneficiaries
  • The size and complexity of the estate
• Possible Outcomes: The court may decide to redistribute the estate in your favour, dismiss your claim, or order mediation to resolve the matter.

The Importance of Seeking Legal Advice

Given the complexity of the legal process and the strict time limits involved, it is highly recommended that you seek legal advice from an experienced solicitor specialising in wills and estates.

There are several compelling reasons to seek professional legal advice:

Reason	Explanation
Complex Legal Process	Solicitors guide through complex procedures and ensure proper application preparation.
Meeting Time Limits	Legal advice helps ensure claims are filed within strict 12-month deadlines.
Improving Chances of Success	Solicitors assess claim strength, advise on presentation, represent clients in court, and negotiate if needed.

By following these steps and seeking professional legal advice, you can navigate the process of making a family provision claim and ensure that your rights are protected.

Conclusion

Contesting a will in New South Wales is a complex legal process, particularly for friends who may not automatically qualify as eligible persons under the Succession Act 2006 (NSW). While spouses, children, and de facto partners have clear eligibility, friends must meet specific criteria such as dependence and cohabitation to be considered eligible to make a family provision claim. The legal framework governing will contests emphasises the importance of moral obligations and the deceased’s wishes, making it essential for potential claimants to understand their rights and the strict time limits involved.

If you are considering contesting a will or need guidance on your eligibility to make a family provision claim, contact the family provision claim lawyers at PBL Law Group in Sydney today. Our trusted expertise in contesting a will can help you navigate the legal process and ensure your rights are protected. Don’t miss the opportunity to seek the support you need—reach out to us now for tailored advice and representation.

Contesting a Will in NSW: FAQs