How to Contest a Parent’s Will: A Child’s Guide to a Family Provision Claim

Introduction

Contesting a parent’s will can be a difficult and emotional process, and it’s natural to wonder what you can do about an unfair will if you feel you have been left out or received less than you expected from the estate. In New South Wales, the law allows children to make a family provision claim if they believe the will does not provide adequate inheritance or support for their needs.

Understanding your rights and the steps involved is essential to making a strong estate claim. Seeking advice from a wills and estate lawyer early on can help you assess your situation, gather the right evidence, and ensure your provision claim is handled with care and expertise.

Understanding Your Right to Contest a Will in NSW

What is a Family Provision Claim

Making a family provision claim is a legal process that begins with an application to the Supreme Court of NSW by individuals who believe they have not been adequately provided for in a deceased person’s will. Under the Succession Act 2006 (NSW), this claim enables certain family members and dependents to seek a larger share of the estate if the inheritance they received is insufficient for their needs.

This legal process is designed to ensure that eligible people are reasonably provided for based on their specific circumstances. If you have been left out of a will entirely or feel the provision made for you is inadequate, you may have grounds to make a family provision claim to contest the will.

Who Qualifies as an Eligible Child to Contest a Will

The Succession Act 2006 (NSW) specifies who is considered an ‘eligible person’ to make a family provision claim against an estate. A child of the deceased falls into this category, giving them the right to contest a will if they believe the provision made for them was inadequate.

Several types of children are recognised as eligible to make an estate claim, including:

• Biological and ex-nuptial children: A person’s direct offspring, regardless of the parents’ marital status.
• Adopted children: Children who have been legally adopted by the deceased.
• Stepchildren: In some circumstances, a stepchild may be eligible, particularly if they were part of the deceased’s household or dependent on them.
• Grandchildren: A grandchild may also be eligible if they were wholly or partly dependent on the deceased at any time.

Key Factors the Court Considers in a Family Provision Claim

Your Relationship with the Deceased Parent & Any Estrangement

The nature of the relationship between you and your deceased parent is a significant factor in a family provision claim. A close and loving relationship can form the basis of a stronger claim to contest the will, while a history of conflict or estrangement may require further explanation, highlighting the impact of estrangement on family provision claims.

If you were estranged, the court will examine the circumstances surrounding the separation. In particular, the court considers:

• The duration of the estrangement
• The causes of the estrangement
• Whether you made any genuine attempts to reconcile with your parent before their death

Importantly, an estrangement—even one that lasted for many years—does not automatically end a parent’s obligation to provide for their child in their estate.

Your Financial Needs & the Estate’s Size

The court carefully assesses your financial position when considering an estate claim. Financial need and family provision claims are closely linked, as your current and future needs, earning capacity, and overall resources are all taken into account.

A child with limited financial means and a demonstrated need for provision will generally have a stronger case than a child who is already financially secure.

The court will also consider the financial circumstances of any person you are cohabiting with, such as a partner or spouse. These needs are weighed against:

• The size and nature of the parent’s estate
• The financial needs of other beneficiaries named in the will

Generally, a larger estate provides more capacity to make adequate provision for all parties involved.

Your Age, Health & Personal Circumstances

Your personal circumstances, including your age and health, play a crucial role in the court’s determination. The court will consider your age, as a younger child who is still dependent on their parents for support and education may have a stronger claim than an older, more established adult child.

Furthermore, any physical, intellectual, or mental disability you have is a key consideration. If a disability impacts your ability to work or provide for yourself, the court will take this into account when assessing whether adequate provision has been made for you from the estate.

Contributions You Made & Provisions Already Received

The court will evaluate any contributions you made to the parent’s estate. If you contributed to the acquisition, conservation, or improvement of your parent’s assets, this can strengthen your family provision claim. For example, children who worked for many years on a family farm or in a business for little or no financial reward may have a stronger claim.

Conversely, the court will also consider any provision you received from your parent during their lifetime. If you received substantial gifts or financial support from your parent while they were alive, this may weaken your claim for further provision from the estate, especially when compared to other siblings who did not receive similar benefits.

The Process for Making an Estate Claim

The Importance of Seeking Advice from a Wills & Estate Lawyer

Before commencing an estate claim, it is essential to seek advice from a solicitor who specialises in wills and estate law. An experienced practitioner can provide a comprehensive assessment of your circumstances, explain the strength of your family provision claim, and help you understand the legal and procedural complexities involved.

Engaging a qualified solicitor also ensures that all legal requirements for contesting a will are properly satisfied from the outset. They can guide you through every stage of the process, including gathering and assessing relevant evidence, preparing and filing court documents, representing you during mediation, and advocating on your behalf in court proceedings if required. With professional guidance, you can approach the claim process with greater confidence and clarity, particularly given the strict time limits and evidentiary requirements that apply under NSW succession law.

Filing Your Claim & Critical Time Limits

In New South Wales, a family provision claim must be filed with the Supreme Court of NSW. Under the Succession Act 2006 (NSW), there is a strictfamily provision claim time limits for this action. You must file your application within 12 months of the date of the deceased parent’s death.

While this deadline is firm, the court may grant an extension in exceptional circumstances if you can show “sufficient cause” for the delay.

To initiate the claim, you will need to prepare the following documents:

• a Summons commencing the proceedings
• a supporting Affidavit that outlines the basis of your claim

Gathering Evidence to Support Your Provision Claim

Giving evidence to contest a will is a key part of the process, as the responsibility for proving a family provision claim rests on the person making it.

Therefore, gathering comprehensive documentation and evidence early in the process is vital to strengthen your position.

You will need to prepare a detailed affidavit that includes evidence supporting your need for provision from the estate.

Key pieces of evidence you may need to collect include:

• Financial Records: Documents that show your current financial position and needs, as well as those of anyone you live with.
• Medical Reports: Evidence of any physical, intellectual, or mental disability that affects you or a person you care for.
• Relationship Evidence: Documents or correspondence that establish the nature of your relationship with the deceased parent, including any attempts at reconciliation if you were estranged.
• Proof of Contributions: Any records demonstrating contributions you made to the acquisition, conservation, or improvement of your parent’s estate.

Understanding Mediation & Court Proceedings

Most will dispute cases are resolved before a final court hearing. The court system encourages parties to settle their disputes through mediation in NSW will disputes, which is a voluntary and effective way to reach an agreement without the time, stress, and expense of a full trial.

In family provision matters, the court will typically refer the parties to mediation. If a settlement cannot be reached, the matter will proceed to a court hearing.

During the hearing, the judge will:

• review all the evidence presented by both sides
• apply principles of fairness and justice
• decide whether adequate provision has been made and may order a redistribution of the estate

Common Scenarios When Contesting a Will

How a Minor Child Can Contest a Will

A minor child cannot bring a family provision claim on their own. Instead, they must be represented by an adult, known as a “next friend” or guardian ad litem, who acts in the child’s best interests throughout the legal proceedings. This representative is often a parent or legal guardian.

The solicitor involved in the estate claim must:

• File an affidavit confirming that the next friend is a suitable person with no interests that conflict with those of the child.
• Ensure that any legal action to contest a will started by a minor without a next friend may be dismissed by the court.

The next friend is responsible for the conduct of the proceedings and may be liable for legal costs.

Contesting a Will When You Are Estranged from a Parent

An estrangement from a parent does not automatically prevent you from making a family provision claim against their estate. While a close and loving relationship can strengthen a claim, the court recognises that a parent’s obligation to provide for a child does not necessarily end due to a period of separation.

When assessing an estate claim involving estrangement, the court will consider several factors, including:

• The reasons for and duration of the estrangement.
• Whether you made genuine attempts to reconcile with your parent before their death.
• Any written statements from the deceased parent explaining their reasons to exclude a child from the will.

The court examines the entire history of the relationship to determine whether the provision in the will was adequate for your needs.

Case Studies on Will Dispute Claims

A Successful Estate Claim by an Adult Child

The case of Lalic v Lalic [2022] NSWSC 31 illustrates a successful family provision claim by an adult child. In this matter, a 66-year-old son made a claim against his late mother’s estate, which mainly consisted of the family home and was left to his two younger siblings in the will.

Although the claimant had previously received a block of land for his contributions to the family business, his circumstances had changed significantly. Specifically:

• He had lost the gifted land.
• He was unable to work.
• He was going through a divorce.
• He relied on a government pension.

Due to his evident financial hardship, the court awarded him $125,000 from the estate to make adequate provision for his needs.

An Unsuccessful Estate Claim by an Adult Child

In contrast, the case of Georgopoulos v Tsiokanis [2022] NSWSC 563 demonstrates an unsuccessful estate claim. Here, an adult daughter brought a claim against her late father’s estate. The father’s will left her a nominal amount of $100 from an estate valued at over $368,000, and he provided detailed written statements explaining his reasons.

The court’s decision centred on the daughter’s reprehensible conduct towards her father, which included:

• Hostility that escalated to physical violence.
• The father taking out an Apprehended Violence Order (AVO) against her.

The court dismissed her family provision claim, finding that her behaviour disentitled her to any further provision from the estate.

Conclusion

In New South Wales, a child has the right to contest a parent’s will by making a family provision claim if they believe the inheritance they received from the estate is inadequate for their needs. The success of an estate claim depends on various factors considered by the court, including financial circumstances, the nature of the relationship, and any contributions made to the parent’s assets.

If you feel you have been unfairly provided for in a will, seeking timely legal advice is a critical step. For trusted expertise tailored to your situation, contact the wills and estates lawyers at PBL Law Group to assess your provision claim and protect your inheritance rights.

Frequently Asked Questions