The loss of a family member is always a difficult time, and it can be distressing to learn that you have not been included in the family member’s will. Generally, a person may leave their assets to whomever they wish. However, the law recognises that there are may be people who have relied on the deceased for support, who can sometimes be unfairly left out of the will. Such people are able to make a claim so that their needs are adequately provided for.

How do I challenge the deceased’s will?

There are two main grounds for challenging the deceased’s will or contesting the estate. These are:

1. Challenging the validity of the will – this may be on the basis that the will maker did not have the legal capacity to make the will, or didn’t understand what they were signing; or
2. A claim can be made under the Succession Act 2006 (NSW) on the basis that the will maker failed to provide for a family member where they had a moral obligation to do so.

Can anyone challenge a will?

Under the Succession Act, only persons who qualify as eligible persons under the Act may apply to the court. There are seven categories of eligible persons, namely:

1. The wife or husband of the deceased when they died;
2. A person in a de facto relationship with the deceased when they died (including same sex partners);
3. A child of the deceased;
4. Former wives and husbands of the deceased or former de facto partners of the deceased, who were receiving or were entitled to receive maintenance from the deceased when they died;
5. A grandchild of the deceased, in certain circumstances;
6. A step-child of the deceased in certain circumstances; and
7. A parent of the deceased.

To show that you are entitled to receive some benefit from the estate you must show that the deceased had an obligation to provide for you and that you have been left without adequate provision for your proper maintenance, education or advancement in life. It is important to note that inheritance claims are subject to a strict time limit, which is 12 months after the date of death.

You may not need to go to court as most parties are encouraged to resolve their claims by mediation to avoid legal costs or any lengthy delays.

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Get legal advice 

If you are concerned, please be sure to contact us as soon as possible or you may be prevented from making a claim. It is usually a good idea to try and get a copy of the last will of the deceased so that you can discuss the details with us more accurately. If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or contact us via our form, here. If you would like to prepare your will with us, please fill out the Will Instruction Form and we will contact you.