I am not a family member of the deceased. Can I still contest their will?

Published 23 Apr 2020

When a loved one dies, their will is a crucial legal document to help sort out their affairs. Even though they are binding legal documents, family members and other eligible parties have the right to contest the will if they feel they were unfairly provided for.

Among many other factors, courts will take a close look at your relationship with the deceased if you choose to contest their will.

Understanding family provisions

When it comes time to contest a will, family members of the deceased have the most legitimate claim, according to the State Library of New South Wales. This is due to the updated Succession Amendment (Family Provision) Act 2008, which outlined who is eligible to contest a will regardless of whether they were explicitly mentioned in the document.

Spouses, a person living in a de facto relationship, children and former spouses of the deceased, have eligibility to apply for family provisions, with preference given to claims in that order. Additionally, grandchildren and step-children may be eligible to contest a will with proof of their dependency on the deceased.

Ultimately, direct family members of the deceased have the best chance to successfully contest their will, but things are not always so black and white.

Can non-family members contest a will?

Courts will scrutinise your relationship with the deceased if you want to contest their will, and part of your eligibility is proof that you were dependent on them financially. According to Victoria Legal Aid, any person who can prove the deceased had a 'moral duty' to provide for them may be eligible to contest their will. This is supported by the Supreme Court process known as testator's family maintenance.

If you had a close, personal relationship with the deceased at the time of their death or were partly or wholly dependent on them, you could have grounds for contesting their will. Of course, even if you're eligible to make a claim, the courts will still consider other factors like your financial need, the deceased's intent and the nature of your relationship with them.

While a direct family member of the deceased is more likely to successfully contest their will, you can still make a claim if you can prove your close relationship and dependency on the deceased even if you're not related to them.

If you're questioning your eligibility for contesting a will, the professionals at Gerard Malouf & Partners can help you understand your rights. We are here to help you fully understand everything you need to know, so contact us today.

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