Challenging or Contesting a Will in New South Wales

Pursuant to provisions of the Succession Act  Wills can be challenged in a variety of different ways.

Who can challenge a Will?

People who can challenge a will include :

• legal spouses, including divorcees from a spouse;
• de facto spouses, including former defacto spouses;
• children of the deceased of any age; and
• persons who once lived with the deceased and were some time dependent upon the deceased.

What estate assets are included?

Not only does the estate include assets owned by the deceased at the time of death, but the estate can also include that which is referred to as “notional estate”. This could extend to assets transferred by the deceased to another person within three years from the date of death without market value consideration. It also can include assets which the deceased controlled such as family trusts.

What if I received a small legacy in the will, can I still make a challenge ?

Receiving a legacy all requesting a will does not prevent you from making a claim. The relevant issue is not whether you received a bequest or legacy, but whether adequate provision was made for you in terms of your proper maintenance, support, education or advancement . The courts consider the “moral duty”.

What does that Court consider when a claim is made ?

In making a determination, consideration is given to many factors including:

• estrangement from, or poor relationship between, the applicant and the deceased;
• the conduct of the applicant towards the deceased;
• the overall size of the estate;
• the age, personal and financial circumstances of the applicant; and
• the page, personal and financial circumstances of the named beneficiaries.

What if I do not have a copy of the Will ?

The following persons are entitled to request and receive a copy of the Will:

• any person named or referred to in the Will, whether as a beneficiary or not
• any person named or referred to in an earlier will as a beneficiary
• the surviving spouse, de facto partner (same or opposite sex) and children
• a parent or guardian
• any person who is entitled to a share of the estate if the person died intestate
• a creditor – Succession Act 2006 (NSW) section 54.

Left out a Will and not sure what to do next? Are you an executor of an Estate facing legal challenge and not sure what to do next?

Estate litigation can be made unnecessary complex. At The Norton Law Group we specialise in estate law including Will disputes. As a specialist lawyers we simplify the process so as to maximise the prospect of resolution of the matter without court hearings by using alternative dispute resolution matters where appropriate and otherwise by offering strong legal representation if the matter needs to be determined at trial. Need further help? Contact us today