Australian law outlines specific persons who can contest a will — predominantly governed in NSW by the Succession Act (2006) s57. If you believe that you have been unfairly treated in a Last Will and Testament — a legal contest can be a pathway to receiving a fair and equitable inheritance.
Those permitted to contest a will, known in law as eligible persons, include:
- The deceased’s spouse, who was married to their wife/husband at the time of their passing.
- A person who was living with the deceased in a de-facto relationship when their partner passed away.
- A child of the recently deceased.
- The deceased’s previous spouse.
- A person who was:
- at any particular time, partially or fully dependent on the recently departed, and
- was a grandson or granddaughter of the recently passed, or at any point in time, living in the home of the deceased.
- A person with whom those that recently passed were habiting with — and partaking in a relationship of a personal nature — at the time they succumbed to death.
Bear in mind that contesting a will in NSW is not the same as challenging a will. A challenge occurs when a person questions the validity of a Last Will and Testament — typically on the grounds that the testator was not of sound mind when the will was written, was subject to coercion, the will is an alleged forgery, or it lacks witness and testator signatures.
Eligible persons for challenging a will include:
- Named beneficiaries in the will.
- Named beneficiaries in an earlier version of the will.
- Persons who would be entitled to benefit from the estate through the law of intestacy — if the will had not been written.
The Procedure for Contesting Wills in NSW
In NSW, a will contest is usually made under a Family Provision Claim — and time is of the essence. It must be presented to the court no later than twelve months after the testator’s (the person writing the will) death.
The grounds for contesting a will through a Family Provision Claim include the claimant believing they were unfairly omitted from a will, or if included in the Last Will and Testament, of the opinion that the inheritance provided was insufficient.
And, if the claim is granted by the court, the claimant will receive a share of the estate — or indeed a larger amount if the claim was made on the grounds of insufficiency.
The procedure for making a Family Provision Claim, supplying the necessary documentary evidence, and responding to the court’s requests can be complex and convoluted. It’s therefore important that you use a legal professional — speak to Falzon Legal about how to contest a will if you believe you have been unjustly treated.
Can I Contest a Will After 12 Months?
Making a Family Provision Claim after 12 months is possible, but by no means straightforward.
Firstly, while you should initially speak with the executor about making an out-of-limit application, they do not have the authority to sanction a late claim. That power lies solely with the Supreme Court.
Secondly, while the Succession Act (2006) s58 permits a late claim, it can only be made if sufficient cause for procrastination can be demonstrated. The case Byrne v Pickering (2011) NSWSC 1572 outlined the factors the court should consider:
- The reasons behind the overdue claim.
- If any of the named beneficiaries in the Last Will and Testament would suffer unfair prejudice.
- If any of the parties had conducted themselves unreasonably.
- The relative strength of the claim.
Based on the above, it’s clear that the court has significant discretion in permitting or forbidding an out-of-time claim — and the arguments for both sides can be robust.
For example, a strong basis for a claim would be the claimant being unaware of the testator’s death — and not being informed of the fact until after twelve months. In contrast, a solid reason for the court to reject the claim would be that all the assets had already been distributed to beneficiaries — and reacquiring them could be impossible, especially if they had been subsequently sold, disposed of, or spent.
If you’re considering contesting a will after 12 months — chat with our Wills and Estate specialists. We will provide clear and honest advice on the eligibility of your late claim, and work relentlessly with you to achieve a positive outcome.
Should You Contest a Will?
To slightly misquote Jeff Goldblum in Jurassic Park (1993) — you were so preoccupied with whether you could, you didn’t stop to think if you should.
As long as you meet the criteria of an eligible person for contesting wills in NSW — there’s nothing legally preventing you from disputing a Last Will and Testament. Indeed, making a claim can be the ‘correct’ course to pursue or indeed a beneficial route. It has the advantages of:
- Ensuring you receive the fair treatment you deserve.
- Providing a true reflection of your relationship to the deceased.
- Delivering necessary financial assistance that was lost due to your dependence on the deceased.
- Receiving recompense for your support of the deceased during their lifetime.
- Ensuring the true wishes of the deceased are represented — in the case of a challenge for forgery or coercion.
- Preventing undeserving others from receiving a share — where fraud or pressure was involved and a challenge is made.
That being said, there can be some downsides. A successful claim isn’t guaranteed, it can place strain on existing family relationships, costs you between 6-24 months of your life, and may cause you stress and worry.
Crucially, chat with us at Falzon Legal if you’re considering disputing a will — the strict time frame necessitates prompt action. Our experienced and compassionate team will talk to you considerately about who can contest a will, your options, your eligibility, and the likelihood of your claim being successful.
— Falzon Legal