Who is eligible to contest a will?

Published 22 Jul 2014

In New South Wales, people who wish to contest a will must first be found eligible by the Supreme Court. Understanding who is able to make these disputes is an important step towards claiming your rightful provision of an estate.

Fortunately, there are some very clear guidelines set out under the NSW Succession Act 2006. In particular, those eligible to make family provision claims in the state are:

  1. A person married to the deceased at the time of their death
  2. An individual who was living in a de facto relationship with the deceased when they passed (including same-sex partners)
  3. Any children of the deceased person
  4. Former wives or husbands (in certain circumstances only)
  5. Any person who was at any time financially dependent on the deceased
  6. A grandchild or any other individual who was a member of the household and dependent on the deceased
  7. Any person who was living in a close personal relationship with the deceased at the time of their death.

However, simply qualifying under these categories does not automatically support your claim on a loved one’s estate. There are still a range of factors which the Supreme Court of NSW will consider when making a family provision claim.

What does the Court take into account?

When determining your eligibility to claim on the deceased estate, the Supreme Court of NSW will review a number of factors and influences. These include:

  1. Your current financial standing
  2. Your health and ability to work
  3. Potential future income and expenses
  4. Your relationship with the deceased
  5. Past contributions made to your welfare by the deceased
  6. Your conduct prior to and after the death
  7. Anything the Court may consider relevant

With all of this in mind, it is easy to see how difficult it can be to successfully contest a will. Even something as simple as a loan from deceased in the years prior to their death can influence how much you are awarded through your inheritance dispute actions.

Overall, the most important factor when deciding whether an individual will be given provision from an estate is the moral obligation the deceased had towards their welfare. In particular, it is widely accepted that parents have an obligation to care and provide for their children, but they may not be required to make allowances for grandchildren or siblings.

Deciding to contest a will?

If you are planning to lodge an inheritance dispute this year, it is recommended that you contact a contesting wills lawyer as soon as possible. These professionals are trained and qualified to support your case and give you the best chance of receiving what you deserve.

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