Will Disputes in NSW

Discovering you have been left out of a loved one’s will, or that the provision made for you seems unfairly small, can add significant distress to an already difficult time.

While a person generally has the right to decide who inherits their property, NSW law recognises that they also have a responsibility to provide for certain people. If you have been left with inadequate provision, you may have the right to challenge the will by making a “Family Provision Claim”.

What is a Family Provision Claim?

A Family Provision Claim is an application made to the Supreme Court of NSW under the Succession Act 2006. It is not a challenge to the legal validity of the will itself. Instead, it is an argument that the deceased failed to make “adequate provision for the proper maintenance, education or advancement in life” for an eligible person. “Advancement in life” can include assistance with education, housing, or other support that enables a person to improve their life circumstances

If the Court agrees, it has the power to override the terms of the will and make an order for a portion or a greater portion of the deceased’s estate to be given to the applicant.

Who can make a claim? The “Eligible Person”

Only an “eligible person” as defined by the Succession Act can make a Family Provision Claim. In NSW, this includes:

• The spouse or de facto partner of the deceased at the time of death.

• A child of the deceased.

• A former spouse of the deceased.

• A person who was, at any particular time, wholly or partly dependent on the deceased.

• A grandchild of the deceased who was, at any particular time, wholly or partly dependent on the deceased.

• A person who was living with the deceased in a “close personal relationship” at the time of their death.

How does the Court decide a claim?

The Court undertakes a two-step process. First, it must decide if the provision made for the applicant (if any) in the will was inadequate for their proper maintenance and advancement in life.

If the Court finds the provision was inadequate, it then moves to the second step: deciding what provision should be made from the estate. In making this decision, the Court will consider a wide range of factors, including:

• The applicant’s financial position, including their current and future needs.

• The nature and length of the relationship between the applicant and the deceased.

• The size and nature of the deceased’s estate.

• The financial circumstances of the other beneficiaries named in the will.

• Any financial or non-financial contributions the applicant made to the deceased’s property or welfare.

• The age and health of the applicant.

• The character and conduct of the applicant.

Warning: strict time limits apply

This is one of the most critical aspects of a Family Provision Claim. An application must be filed with the Court within 12 months of the date of the deceased’s death.

The Court can grant an extension, but only in limited circumstances. If you miss this deadline, you may lose your right to make a claim forever. It is vital to seek legal advice as soon as possible.

How we can help

Contesting a will is a deeply personal and often challenging process. Our experienced and compassionate lawyers understand the sensitivities involved and can guide you through every step with care and expertise.

We can assist you by:

• Assessing your situation and providing clear advice on your eligibility and the strength of your potential claim.

• Gathering the necessary evidence to support your application.

• Negotiating with the estate’s executor to try and reach a fair settlement without going to court.

• Representing you in mediation and, if necessary, in court proceedings.

If you feel you have not been adequately provided for in a will, contact our team for a confidential and obligation-free discussion about your circumstances.

Disclaimer: The content of this article is intended to provide general information only and does not constitute legal advice. You should seek tailored legal advice for your specific circumstances before taking any action.