Contesting a Will in NSW - Who Can Make a Family Provision Claim?

Published 14 Apr 2015

Author: Richele Nelsen

In Australia each State and Territory has its own legislation in relation to contesting a Will and making a claim for family provision from the estate. In New South Wales family provision claims are dealt with under Chapter 3 of the Succession Act 2006 (NSW).

Who Can Make a Claim?

Not just anyone can make a claim for family provision on a deceased’s estate. Family provision claims are restricted to people who are classed as eligible persons in accordance with the law. In order to make a claim for family provision in New South Wales an applicant must fall into one of the following categories:

  • A spouse of the deceased. This includes husbands, wives and de factor partners.
  • A child of the deceased. This includes biological and adopted children.
  • A former wife or husband of the deceased person.
  • A person who has at any particular time been wholly or partly dependent on the deceased person AND who is a grandchild of the deceased person OR was at any particular time a member of the same household as the deceased person.
  • A person with whom the deceased person was living in a close personal relationship with at the time of their death.
What Else Does the Court Consider?

Contesting a Will in NSW requires more than simply showing that you are an eligible person. Once a person can show they fall into one of the categories above, they must then demonstrate to the Court that there are factors warranting the claim. The Court will look at the relationship between the applicant and the deceased person, the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, the size of the estate, the financial circumstances of the applicant, the age of the applicant, any physical, intellectual or mental disability of the applicant, any contribution the applicant has made to the deceased’s estate, and much more.

Time Limits to Contesting a Will

A person who intends to make a claim for family provision on an estate in New South Wales needs to formally commence Court proceedings within 12 months of the date of the deceased’s death.

It is possible in some circumstances to make a claim after the 12 month period, however this is generally only in exceptional circumstances and there are no guarantees your claim will be accepted after this time so it is important to file proceedings before the expiration of the 12 month period.

If you have been left out of a Will or believe you have grounds contesting a will contact our experienced Will Dispute Lawyers today on 1300 768 780.

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