On the presumption that every person has testamentary capacity, the law in Australia recognises that you have the right or freedom to deal with your assets or property as you see fit. While people may disagree with the terms or gifts of a person’s Will, or have an expectation that is not fulfilled by the Will, that is generally irrelevant.
However, the law also recognises a category of ‘eligible persons‘ under the Succession Act 2006 (NSW) which is designed to protect those persons whom the deceased person had a moral responsibility or obligation for, and provides them with a framework for disputing or contesting a Will in NSW.
When can you contest a Will in NSW?
A Will can be challenged, or a dispute may arise in circumstances including:
- The person making the Will (Testator) did not have the testamentary capacity (i.e. mental capacity) to understand what he/she was doing to make a Will at the time it was signed. For more information on what is capacity in a legal context, click here.
- Someone who should have to receive something under the Will, has been left out of the Will (no adequate provision).
- Testator’s intentions are unclear.
- The testator did not make the Will freely or the testator’s decisions were influenced by others
- The will is grossly unfair
- Parts of the Will were changed after the testator signed it
- When people who are dependant upon the deceased person (either partially or fully) such as spouses, de factos, children (including adopted children), ex-spouses, grandchildren and/or dependants have been excluded or they believe they have not been left a fair share of the testator’s assets
Are there time limits in Contesting a Will in NSW?
You only have a limited time from the date of the death of the testator to apply to the Court to challenge the Will which is 12 months from the date of death in NSW.
Who can contest a Will in NSW? – ‘Eligible Persons’
Only those persons who, the Court determines is an “eligible person” is eligible to apply to a Court for an Order that provision be made for a person’s maintenance, education or advancement in life from the deceased person’s Estate, which can include:
- The husband or wife at the time of the deceased’s person’s death
- A person with whom the deceased person was living in a domestic relationship at the time of the death
- A child of the deceased person or, if the deceased person is living in a domestic relationship at the time of death, a child of that relationship
- A former husband or wife of the deceased person
- A person who was, at any particular time, wholly or partly dependant on the deceased person, and who was, at any time, a member of a household of which the deceased was a member
- A grandchild of the deceased person who was at any particular time, wholly or partly dependant on the deceased
This is a complex area of the law and you should consult Rockliffs Lawyers who have experience in challenging Wills/Estate disputes.
Legal Fees for Contesting a Will in NSW?
As with anything, it is always important to consider the costs of any application, in contrast with the size of the actual estate of the deceased. At Rockliffs, we aim to keep our legal fees reasonable and competitive, and often, the legal fees of challenging a Will are paid out of the Estate of the person who has died.
If you believe that you have been left out of a Will, have not received adequate provision in a Will, or you believe there are issues with the validity of the Will or the Testator’s capacity when making the Will, feel free to contact the experienced Estates Disputes Lawyer in Sydney for advice on contesting a Will in NSW.