Contesting a Will in Australia

3rd April, 2024

Generally, an individual may contest a Will if they feel they have been left out or if they feel they have been inadequately compensated. In New South Wales, you can make a family provision claim to contest a Will. This is an application to the Supreme Court of NSW for a share or a larger share from the estate of a deceased person. A family provision claim is required to be submitted within 12 months of the deceased’s death, so it is recommended that a claim is started sooner rather than later.

In certain circumstances, an individual may feel excluded if the deceased has passed away without leaving a will. In such cases, when an individual dies intestate, an application for letters of administration must also be submitted.

Who is eligible to make a family provision claim?

  • Spouse of the deceased
  • A person who was in a de facto relationship with the deceased
  • Any child of the deceased (including an adopted child)
  • A former spouse of the deceased
  • A person who was, at any time, entirely or partly dependent on the deceased
  • A grandchild or a member of the same household as the deceased
  • A Person in a close personal relationship with the deceased person as at the time of death

 

If you are unsure if you are eligible, please seek legal advice from Castrikum Adams Legal.

What are some aspects that the Supreme Court will take into consideration?

  • The relationship between the applicant and the deceased
  • If the deceased has already provided for the applicant in their lifetime
  • If there is another individual that is responsible for supporting the applicant
  • If the applicant has made any contributions that have increased the value of the estate
  • The applicant’s character
  • Any other claims on the estate
  • Anything else the Court may regard as relevant

 

Before making a family provision claim, you can attempt to resolve the dispute through mediation. This can be a cost-effective and less stressful way to settle matters without going to court.

A claim can be made on an estate in New South Wales providing the deceased lived and owned assets in New South Wales, whether you live interstate or even overseas.

It is crucial to use a lawyer that can clearly comprehend the specific laws of the state where you are making claim. If you are seeking further clarification or interested in making a claim, contact Castrikum Adams Legal who will be able to assist you with any Estate Planning matters.  Explore our website for more information on Wills and why you should have one.