Understanding Will Contests in NSW

Contesting a will in New South Wales is a complex legal process that allows eligible beneficiaries to seek a more equitable share of the deceased estate. Under the Succession Act 2006 (NSW), beneficiaries who believe they have not received adequate provision can make a Family Provision Claim to the Supreme Court of New South Wales. This process is designed to ensure that the financial and emotional needs of eligible individuals are considered, providing a legal avenue for those who feel the will does not fairly reflect their entitlement.

This guide provides essential information and practical guidance on contesting a will in NSW, focusing on eligibility requirements, key considerations, and procedural steps. It explains the legal framework, time limits, and factors the court considers when considering a Family Provision Claim. Whether you are a spouse, child, de facto partner, or another eligible beneficiary, this guide will help you understand your rights and the process involved in contesting a will in NSW.

Contesting vs. Challenging a Will: A Key Distinction for Beneficiaries

As a beneficiary, you are already included in the will. However, you might feel the provision made for you is insufficient. It’s crucial to understand which legal path addresses this specific situation.

Basis of the Claim	Contesting a Will (Family Provision Claim)	Challenging a Will
The Argument	“The will is valid, but the share I received is insufficient for my proper maintenance and support.”	“The entire will is invalid due to issues like undue influence or lack of capacity, and should be set aside.”
The Goal	To have the court increase your provision from the estate, giving you a larger share than what was originally written in the will.	To have the will declared void, which could mean an earlier will takes effect or the estate is divided by intestacy rules. This might risk the inheritance you were already left.
Common Grounds	Being an eligible person (like a spouse or child) with significant financial needs, a close relationship with the deceased, or having made contributions to their estate that weren’t recognised.	Believing the deceased was forced or coerced (undue influence), did not have the mental soundness to make a will (lack of capacity), or that the will is a forgery.

In simple terms, as a beneficiary, you most commonly contest a will to seek a larger share. To challenge a will is a more drastic step that questions the document’s legitimacy and could jeopardise the provision you have already been granted if the challenge is unsuccessful.

This guide focuses on contesting a will via a Family Provision Claim. If you believe the will is fundamentally invalid, you would need to explore the separate process of challenging its validity.

Eligibility to Contest a Will in NSW

Eligible Beneficiary

In New South Wales, only specific individuals are legally eligible to contest a will under the Succession Act 2006 (NSW). These include:

Eligible Category	Description
Current or former spouses	Both current and former spouses of the deceased can contest if they believe adequate provision was not made.
De facto partners	Partners in a de facto relationship, as defined by the Interpretation Act 1987, have the same rights as married partners.
Children	Biological, adopted, or presumed children of the deceased are eligible if they feel inadequately provided for.
Dependent household members	Individuals who were financially dependent on the deceased and lived with them can contest the will.
Dependent grandchildren	Grandchildren who were financially dependent on the deceased are eligible to make a claim.
Close personal relationships	Adults who had a close personal relationship with the deceased involving domestic support and personal care can contest.

Each category has specific legal definitions and requirements, ensuring that only those closely connected to the deceased can make a claim.

Key Criteria under the Succession Act

The Succession Act 2006 (NSW) outlines several criteria that must be met for a beneficiary to contest a will in NSW:

Statutory Criterion	Requirement
Residency or property ownership	The deceased must have been a resident of NSW or owned property in the state at the time of death.
Dependency	For claimants like grandchildren and household members, demonstrating financial dependency on the deceased is required.
Close personal relationship	This involves providing domestic support and personal care without financial reward, as defined by the Act.

These criteria ensure that only those with a legitimate claim can contest the will, maintaining the integrity of the legal process.

Key Considerations in a Will Contest

Assessing “Adequate Provision”

When contesting a will in NSW, the court’s primary concern is whether the testator provided adequate provision for the beneficiary. This assessment involves evaluating the beneficiary’s financial dependency on the deceased and any contributions made to the deceased’s estate. For instance, if a beneficiary relied on the deceased for financial support or contributed significantly to the estate, the court may deem the provision inadequate if it doesn’t reflect these circumstances.

Key factors the court considers include:

Factor for Assessment	Description
Financial Dependency	The extent to which the beneficiary relied on the deceased for financial support.
Contributions to the Estate	Any significant contributions, such as working in a family business without pay.
Previous Support	Whether the deceased provided financial assistance to the beneficiary before their death.

The court aims to ensure that the beneficiary’s current and future financial needs are met, considering their role in the deceased’s life and estate.

Financial Needs And Competing Claims

The court also evaluates the beneficiary’s financial circumstances, health, and age, alongside any competing claims from other beneficiaries. This involves balancing multiple interests to achieve fairness.

Factors considered include:

Factor for Evaluation	Description
Beneficiary’s Financial Status	Current income, expenses, and future financial requirements of the claimant.
Health and Age	How these factors may impact the beneficiary’s ability to earn and support themselves.
Competing Claims	The presence and financial needs of other beneficiaries, such as a spouse or other children.

The court’s goal is to balance these competing interests, ensuring a fair distribution of the estate while considering each beneficiary’s unique situation.

By focusing on these considerations, the court strives to achieve an equitable outcome for all parties involved.

The Legal Process for Contesting a Will

Time Limits & Notification Requirements

A beneficiary must adhere to strict time limits when contesting a will in NSW. The Succession Act 2006 (NSW) outlines these requirements:

Requirement	Details & Time Limit
Notification to the Executor	The beneficiary must notify the executor of their intention to contest the will within six months of the testator’s death.
Filing the Claim	The beneficiary must file a Family Provision Claim with the Supreme Court of NSW within one year of the testator’s death.

It’s worth noting that if the claim is filed after this period, the court may still consider it under special circumstances. These circumstances include situations where the beneficiary was unaware of the testator’s death or the will’s terms.

Filing A Family Provision Claim

The process of lodging a claim involves several key steps:

Procedural Step	Details
Lodging the Claim	The beneficiary must formally lodge the claim with the Supreme Court of NSW, which involves submitting necessary legal documents and paying required filing fees.
Role of the Executor	Upon filing, the executor is typically required to halt the distribution of estate assets until the claim is resolved to ensure their preservation.
Cost Considerations	If the claim is successful, legal costs are usually reimbursed from the estate. If unsuccessful, the claimant may be required to reimburse the estate for its costs.

By following these procedural steps, a beneficiary can ensure their claim receives proper consideration by the court, which increases the likelihood of a favourable outcome.

Conclusion

Contesting a will in New South Wales is a complex legal process that requires a thorough understanding of eligibility criteria, time limits, and procedural steps. This guide has outlined the key considerations for beneficiaries, including the importance of assessing adequate provision, evaluating financial needs, and adhering to strict filing deadlines. By understanding these elements, beneficiaries can better navigate the legal landscape and make informed decisions about their claims.

If you are considering contesting a will or considering your legal options, contact PBL Law Group‘s team of specialist Family Provision Claim lawyers. Our trusted expertise can guide you through the process, ensuring your rights are protected and your claim is handled effectively. Reach out today to discuss your situation and explore your options.

Frequently Asked Questions