How NSW Courts Decide Unfair Will Contests

Introduction

When a will in NSW is perceived as unfair, it often means the document fails to provide adequate provision for an eligible person’s proper maintenance, education, or advancement in life. The law focuses not on personal feelings, but on whether the will meets the standard of “adequate provision” as set out in the Succession Act 2006 (NSW).

Understanding how courts assess unfair wills and the factors they consider is essential for anyone involved in a will dispute. Seeking advice from a wills and estates lawyer early can help you assess your rights, navigate family provision claims, and avoid missing strict deadlines that apply to contesting an unfair will in NSW.

Defining an Unfair Will Under NSW Law

Testamentary Freedom vs Moral Obligation

In NSW, a person has the right to decide who inherits their estate, a principle known as testamentary freedom. This allows a will-maker to distribute their assets as they see fit, which can even include excluding a spouse or child.

However, this freedom is not absolute. It is balanced by a moral obligation recognised under the Succession Act 2006 (NSW). This legislation acknowledges that a will-maker has a duty to provide for certain eligible people, such as close family members and dependents. If this duty is not met, the court can intervene in an unfair will dispute.

The Concept of Adequate Provision

When a will is contested in NSW, the court’s focus is not on whether the will seems subjectively unfair. Instead, the central legal test is whether the will fails to make adequate provision for the proper maintenance, education, or advancement in life for an eligible person, as set by the Succession Act 2006 (NSW).

To succeed in a family provision claim, the person bringing the claim must:

• Demonstrate to the court that the provision made for them in the will was inadequate for their specific needs
• Shift the dispute from a question of emotional fairness to a legal assessment of whether the deceased fulfilled their obligations to the claimant

This concept moves the dispute away from subjective notions of fairness and towards a legal standard based on the deceased’s obligations.

Who Can Make a Family Provision Claim for an Unfair Will in NSW

Spouses, De Facto Partners & Children

Under Section 57 of the Succession Act 2006 (NSW), the law defines specific categories of eligible persons who have the right to make a family provision claim. The most direct claims typically come from the deceased’s immediate family, who can apply to the court for provision from the estate.

This primary group of eligible individuals includes:

• The spouse of the deceased at the time of their death.
• A de facto partner, including a same-sex partner, who was living with the deceased when they died.
• A child of the deceased, which covers both biological and adopted children.

These individuals generally have a recognised moral claim on the estate and can make an application to contest an unfair will as of right.

Former Spouses, Dependents & Persons in a Close Relationship

The Succession Act 2006 (NSW) also allows other individuals with a specific connection to the deceased to contest an unfair will. However, unlike spouses and children, these claimants often need to demonstrate to the court that there are factors warranting their application. This means they must show that the deceased had a moral obligation to provide for them.

This secondary group of eligible persons includes:

• A former spouse of the deceased.
• A person who was dependent on the deceased, either wholly or partly, at any time and is either a grandchild or was a member of the deceased’s household.
• A person who was living in a close personal relationship with the deceased at the time of their death.

For these individuals, the court will assess the nature of their relationship with the deceased and the extent of their dependency before allowing the claim to proceed.

Key Factors the Court Considers When Assessing an Unfair Will Dispute

The Claimant’s Financial Needs & Resources

When assessing a Family Provision Claim, the court’s primary focus is the claimant’s financial situation. The court evaluates both current financial resources and future needs to determine whether the will makes adequate provision for the person’s proper maintenance.

This assessment involves a detailed look at the claimant’s income, assets, expenses, and any physical, intellectual, or mental disabilities that might affect their earning capacity.

Under Section 60 of the Succession Act 2006 (NSW), the court may consider a range of factors:

• The claimant’s age and overall health.
• Their current and future financial requirements.
• The financial circumstances of any person they live with.
• Whether anyone else has a responsibility to support them.

The Relationship Between the Claimant & the Deceased

The nature, length, and quality of the relationship between the claimant and the deceased are significant factors in an unfair will dispute. The court examines how close the parties were to understand any moral obligation the deceased may have had to provide for the applicant.

Beyond these fundamentals, the court also considers:

• The claimant’s character and conduct before and after the deceased’s death.
• Any special type of relationship that existed, such as dependence or joint ventures.
• Whether the relationship was tight-knit or strained.

A strong and supportive relationship can strengthen a claim.

The Estate’s Size & the Needs of Other Beneficiaries

The court must perform a balancing act, weighing the size and nature of the estate against the competing needs of all parties. When calculating the available pool for distribution, the court pays particular attention to:

• The total value of the estate’s assets.
• Debts and liabilities that must be settled before distribution.

A key part of this process is weighing the claimant’s needs against the financial circumstances and claims of the other beneficiaries named in the will. The court must decide if and how the estate can be redistributed to provide for the claimant without being unjust to others who also have a legitimate claim.

Contributions Made to the Deceased’s Estate or Welfare

Any financial or non-financial contributions the claimant made to the deceased’s property or welfare can significantly influence the court’s decision. These contributions can strengthen the moral argument that the claimant deserves provision from the estate.

Examples of relevant contributions include:

• Financial assistance provided to the deceased during their lifetime.
• Non-financial support, such as acting as a carer, which may have saved the deceased significant expense.
• Contributions to the acquisition, conservation, or improvement of the deceased’s assets, such as helping to build a family business.

Common Scenarios Involving Unfair Wills in NSW

Disinheriting a Child or Spouse

A common scenario in an unfair will dispute arises when a will-maker completely excludes a spouse or child from their estate. While a person in NSW has the freedom to decide who inherits their assets, this right is balanced by a moral and legal obligation to provide for their closest family members.

When a parent who is estranged from their child leaves them out of the will, the court will still closely examine the situation. The law in NSW often places greater emphasis on the child’s financial needs than on the closeness of the parent-child relationship.

This means an estranged child can still contest an unfair will. Similarly, a disinherited spouse or de facto partner may have a strong claim, with the court considering:

• The duration of the relationship
• The financial needs of the spouse or partner
• Any contributions made to the deceased’s welfare

Disproportionate Distribution of Assets

A will may also be considered unfair even if it distributes assets, but does so in a way that ignores the different needs of the beneficiaries. For instance, a parent might believe that leaving their estate in equal shares to all their children is the fairest approach. However, this could be deemed an unfair will if it fails to account for the individual circumstances of each child.

Consider a situation where one child has a disability that prevents them from working full-time, while their siblings are financially secure. An equal distribution would not provide adequate provision for the child with greater needs.

In such cases, the court may:

• Order an unequal distribution of the estate
• Ensure the division is fair and properly provides for each beneficiary’s maintenance

Overlooking Significant Contributions by a Claimant

An unfair will dispute can also occur if the document fails to acknowledge significant contributions made by a claimant to the deceased’s estate or welfare. These contributions can be financial, such as helping to grow a family business, or non-financial, like acting as a long-term carer.

For example, a will might be considered unfair if one adult child dedicated years to expanding the family business, substantially increasing its value, but the will divides the proceeds equally among all siblings. The child who made these contributions has a stronger moral claim to a larger share, and the court will consider this when assessing whether the will makes adequate provision.

The Importance of Seeking Specialist Legal Advice for Your Estate Dispute

Assessing the Merits of Your Claim

When dealing with an unfair will, engaging an experienced wills and estate solicitor is a critical first step. These legal professionals can provide an objective assessment of your potential claim, helping to remove the emotion and personal feelings that often arise during an estate dispute.

A solicitor specialising in estate litigation will:

• Evaluate the strengths and weaknesses of your case, giving you a realistic understanding of your chances of success.
• Advise on the best course of action, whether that involves negotiating a settlement or proceeding with a formal court claim.

This early legal advice can often lead to more favourable outcomes in your unfair will dispute.

Meeting Strict Time Limits

If you intend to contest an unfair will in NSW by making a Family Provision Claim, you must act promptly. The Succession Act 2006 (NSW) imposes strict family provision claim time limits, requiring that claims be filed with the court within 12 months of the deceased person’s date of death.

Failing to meet this deadline can result in you being permanently barred from making a claim. While the court may grant an extension in some exceptional circumstances, it is crucial to seek legal advice as soon as possible.

A solicitor can ensure all necessary steps are taken to protect your rights before this critical window closes.

Conclusion

In NSW, a will is contested not on feelings of unfairness, but on whether it fails to provide adequate provision for an eligible person’s proper maintenance and needs. The court assesses such claims by carefully considering the claimant’s financial situation, their relationship with the deceased, the size of the estate, and the needs of other beneficiaries.

If you have been unfairly treated in a will, it is vital to act promptly to protect your rights as strict time limits apply. For trusted expertise and clear guidance on your legal options, contact the wills and estates lawyers at PBL Law Group today to help you secure a fair outcome.

Frequently Asked Questions