Contesting a Will: Common questions and answers

Who can make a family provision claim against an estate in NSW?

Legislation in New South Wales gives certain people a right to claim against an estate if left out, or not adequately provided for. The law provides that you will only be entitled to make a claim for provision if you are an “eligible person”. Section 57 of the Succession Act 2006 (NSW) provides that “eligible persons” include:

1. a wife or husband of the deceased;
2. a de facto partner at the time of the deceased’s death;
3. a child;
4. a former wife or husband;
5. i) a grand-child who was wholly or partly dependent on the deceased;
   ii) a person who was wholly or partly dependent on the deceased and was a member of the deceased’s household at that particular time or any other time.
6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person‘s death.

How long do I have to contest a will?

There is a 12 month time limit from the deceased’s date of death to commence proceedings to make a claim for provision or further provision of an estate in New South Wales. Please be aware that different time limits apply to different States.

Who is entitled to inspect or obtain a copy of a will, held by a lawyer, of a person who is still alive?

Pursuant to Section 54 of the Succession Act 2006 (NSW), the following persons have a right to inspect or have a copy of the will:

1. a person name or referred to in the will (whether as a beneficiary or not);
2. a person named or referred to in an earlier will as a beneficiary of the deceased;
3. the surviving spouse, de facto partner or child of the deceased;
4. a parent or guardian of the deceased;
5. a person who would be entitled to a share of the estate of the deceased if the deceased had died intestate;
6. any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
7. any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person;
8. any person committed with the management of the deceased person‘s estate under the NSW Trustee and Guardian Act2009 immediately before the death of the deceased person;
9. any attorney under an enduring power of attorney made by the deceased person;
10. any person belonging to a class of persons prescribed by the regulations.

If you need help with contesting or defending a will, or have any questions regarding the above. Please do not hesitate to contact us.

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