If you have been left out of a Will, or received much less than you expected, you may be wondering whether you can contest it. In NSW, the answer depends on why you are disputing the Will and your relationship with the person who died.

A family provision claim allows an eligible person to ask the Supreme Court of NSW for a share, or a greater share, of a deceased person’s estate where the deceased has not made adequate provision for them. Alternatively, if you believe the Will itself is invalid, you may be able to challenge its validity.

The right approach depends on the circumstances, and strict time limits can apply. Understanding your options early can help you make an informed decision about what to do next.

What does “contesting a Will” actually mean?

People often use “contest” and “challenge” interchangeably, however there are two key differences to consider.

If you accept that the Will is valid but you believe that you should have received a greater share of the estate, you may contest a Will by filing a family provision claim.

If you believe the Will is invalid, you may be able to challenge its validity on grounds such as lack of testamentary capacity, undue influence, forgery or failure to meet legal execution requirements. Depending on the circumstances, a person with a sufficient interest in the estate may be able to lodge a probate caveat to prevent a grant of probate while the court considers the dispute.

A probate caveat is not the same as a family provision claim. The appropriate process depends on the nature of the dispute and whether probate has already been granted.

Our article on contesting a grant of probate explains validity challenges in more detail and our article on Will-making and testamentary capacity explains the capacity required to make a valid Will.

Who can contest a Will in NSW for greater provision?

You cannot make a family provision claim simply because you knew the deceased or believe the Will was unfair. NSW law limits these claims to certain “eligible persons”.

The definition of eligible persons may include:

• the deceased’s spouse
• the deceased’s de facto partner
• a child of the deceased
• a former spouse
• a person who depended wholly or partly on the deceased and was either their grandchild or a member of their household
• a person who lived with the deceased in a close personal relationship at the time of death

A “close personal relationship” has a particular legal meaning. Generally, the two people, not being married or in a de facto relationship, must have lived together, with one or both providing the other with domestic support and personal care. Paid caring arrangements, or care provided on behalf of another person or organisation (including charities), do not qualify on this basis.

When is eligibility harder to prove?

For some applicants, establishing eligibility involves an additional legal requirement. This may apply to former spouses, dependent grandchildren, certain household members and people who lived with the deceased in a close personal relationship.

In these cases, the applicant must also establish that there are factors which warrant the making of a family provision application. Evidence of financial dependency, living arrangements, support they provided, contributions they made and the nature of the relationship may be relevant, depending on the circumstances.

Was enough left for you? The ‘Adequate Provision’ requirement

Even if you are eligible to make a family provision claim, the court will not automatically award you a greater share of the estate.

The court must consider whether the deceased made adequate provision for your proper maintenance, education or advancement in life. The court will assess your individual circumstances, the size and nature of the estate, the deceased’s obligations and the competing claims of other beneficiaries.

For example, in Bassett v Bassett [2021] NSWCA 320, the NSW Court of Appeal dismissed an adult son’s family provision claim after considering, among other things, the substantial benefits he had received from his parents during their lifetimes and the fact that his material needs were being met.

The case illustrates that eligibility alone does not guarantee a successful claim. The court examines the full circumstances before deciding whether it should make further provision.

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What factors will the court consider when assessing a claim?”

Vague concepts such as ‘adequate provision’ and ‘dependency’ can understandably leave potential applicants uncertain about whether their argument is strong enough to justify a claim. The practical factors the court considers clarify what you should focus on when assessing the strength of your claim.

The court will consider the following factors:

• Your relationship with the deceased and any obligations or responsibilities they had towards you.
• Your financial resources, current and future needs, age and health.
• Any disability affecting your circumstances.
• The size and nature of the estate.
• Any financial or non-financial contributions you made to the deceased or their estate.
• Any provision or benefits you have already received from the deceased.
• The deceased’s intentions, including relevant evidence about why the Will was made in its particular form.
• The financial circumstances and needs of other beneficiaries and eligible claimants.
• Any other circumstances the court considers relevant, including the nature of the relationship and any relevant conduct.

What is important, therefore, is to show not merely the formal title of your relationship with the deceased, but also the nature and quality of the relationship and why it gave rise to a genuine expectation or basis for provision from the estate.

How long do I have to contest a Will in NSW?

You must generally file a family provision claim within 12 months of the person’s death. Importantly, you also do not need to wait for probate before making a family provision claim.

The court can allow an application after the 12-month period where sufficient cause is shown, but an automatic extension should never be assumed. If the deadline is approaching or has already passed, you should seek legal advice immediately.

How do you make a Family Provision Claim?

For most people, the process involves the following key stages.

1. Understand what is in the Will and Estate

The starting point is usually finding out what is set out in the Will and obtaining a clearer picture of the estate. This helps determine what provision the deceased made for you and whether there may be grounds for a claim.

Your solicitor will also look at your relationship with the deceased, your financial circumstances and the reasons you believe the provision made for you was inadequate.

2. Notify the executor about the potential claim

If you are considering making a claim, you should notify the executor as early as possible.

This can matter because, in some circumstances, an executor may distribute estate assets without being personally liable if the required notice and timing rules have been followed and they have not received a notice of a claim. Providing them with notice as early as possible is important when trying to protecting your interest while the estate is being administered.

3. If needed, commence court proceedings

If the matter cannot be resolved informally, you may need to commence a family provision claim in court. Your solicitor will prepare the necessary documents and guide you through the court process.

4. Try to resolve the dispute

Courts often refer family provision matters to mediation before a final hearing.

Mediation gives the parties an opportunity to discuss the dispute and try to reach an agreement without leaving the final decision to a judge. If the parties reach a settlement, they can resolve the matter without a final hearing.

5. If no agreement can be reached through mediation, the court decides

If the parties cannot resolve the dispute, the matter may proceed to a hearing.

This is where the previously discussed legal requirements regarding ‘eligibility’, ‘adequacy’ (etc.) are considered. The judge will consider the evidence, the applicant’s circumstances at the time the claim is decided, the size and nature of the estate, and the competing claims of others before deciding whether it should make further provision.

What should you do if you want to contest a Will?

If the deceased left you out of a Will or did not make adequate provision for you, it is important to understand your legal options as soon as possible.

Ask yourself:

• Do I accept that the Will is valid, but believe it did not adequately provide for me?
• Or do I have a genuine reason to believe the Will itself is invalid?
• Am I legally entitled to make the relevant claim?
• How long has it been since the person died?

In NSW, a family provision claim must generally be filed within 12 months of the deceased’s death. Delaying advice may limit your options, particularly if the executor distributes estate assets before you address your claim.

Speak to a Wills and Estates Lawyer in North Sydney

If you need legal advice regarding a potential estate claim our highly experienced Wills and Estates lawyers can assess whether you are eligible to make a claim, help you understand whether contesting the Will is worth pursuing and identify the appropriate pathway for your claim. Contact our North Sydney office on (02) 9963 9800 or via our contact page.