Can I challenge a Will in NSW?

Losing a family member is difficult enough without discovering that you have been left out of their Will or given less than you expected. In NSW you cannot challenge a Will simply because it seems unfair, but the law does give certain people the right to ask the Court for more.

The two main ways to challenge a Will

• A family provision claim: an eligible person argues that the Will (or the intestacy rules) did not make adequate provision for their proper maintenance, education or advancement in life.
• A challenge to the validity of the Will: for example, that the Will was not properly signed and witnessed, that the person lacked capacity to make a Will, or that the Will was the result of undue influence or fraud.

Who can make a family provision claim?

Under the Succession Act 2006 (NSW), an "eligible person" includes:

• the deceased person's spouse;
• a de facto partner;
• a child of the deceased;
• a former spouse;
• a person who was wholly or partly dependent on the deceased, and who was a grandchild or was living in the deceased's household; and
• a person who was living in a close personal relationship with the deceased at the time of death.

Being an eligible person is only the first step. The Court will also consider whether there are factors that warrant the application being made, and this can be harder to show for people outside the immediate family.

What is the time limit?

A family provision claim must generally be made within 12 months of the date of death. The Court can extend the time in limited circumstances, but an extension is never guaranteed, so it is important not to delay.

What will the Court consider?

Each case turns on its own facts. The Court may consider matters such as:

• the relationship between the applicant and the deceased;
• the applicant's financial resources and financial needs;
• the size and nature of the estate;
• any provision the deceased made for the applicant during their lifetime or in the Will;
• the circumstances of other people with a claim on the estate; and
• any reasons the deceased gave for their decisions.

The Court also gives weight to a person's freedom to decide who benefits from their estate, so a claim is not simply a question of whether the Will seems fair.

What can the Court order?

If the claim succeeds, the Court can order that provision be made for the applicant out of the estate. Many claims resolve through negotiation or mediation without a final hearing.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our lawyers about your specific circumstances.

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