Discovering you’ve been left out of a will, or received far less than expected, is difficult on its own. Understanding whether you can actually do anything about it is a separate question — and the answer depends on specific legal criteria, not just how unfair the outcome feels.
What “Contesting a Will” Actually Means
In NSW, most challenges to a Will take the form of a family provision claim, an application to the Supreme Court asking for a share, or a larger share, of a deceased person’s estate. This is different to disputing that a Will is valid in the first place (for example, on the basis of undue influence or lack of capacity), which is a separate kind of claim.
Who Is an “Eligible Person”
Under the Succession Act 2006 (NSW), only certain people can bring a family provision claim: a spouse of the deceased, a person who was in a de facto or close personal relationship with the deceased, a child of the deceased (including adult children), a former spouse, and, in more limited circumstances, a grandchild or a person who was a member of the deceased’s household, in either case where they were wholly or partly dependent on the deceased. Being disappointed by a Will, on its own, isn’t enough; you need to fit within one of these categories.
What the Court Actually Considers
Even an eligible person doesn’t automatically succeed. The Court looks at the nature and duration of the applicant’s relationship with the deceased, the applicant’s financial resources and needs (present and future), the size and nature of the estate, any financial or other contributions the applicant made, whether the applicant was being maintained by the deceased, and the applicant’s character and conduct. The outcome depends on all of these factors together, not on any single one.
The Time Limit That Catches People Out
A family provision claim is subject to a strict 12-month time limit from the date of death. The Court can extend this only in limited circumstances, and that’s not something to rely on. If you’re considering a claim, or you’re an executor concerned one might be made, getting advice early matters far more than it might seem to at first.
If You’re an Executor Facing a Claim
Executors aren’t expected to fight every claim on principle, sometimes a negotiated outcome protects the estate better than prolonged litigation. Executors do need to be cautious about distributing the estate too early, since distributing before the 12-month window (or a known claim) has passed can create personal risk.
This article is general information only and is not legal advice. Laws change, and every situation is different; please seek legal advice specific to your circumstances.
Speak With Our Probate and Estate Administration and Estate Disputes Teams
Whether you’re considering a claim or responding to one, timing matters. Our Probate and Estate Administration and Estate Disputes team can help you understand where you stand. Call us on (02) 9523 5535 or get in touch online.
