Contesting a will

You can contest a valid will if you receive inadequate provision. If the court finds in your favour it can either vary the provisions or order the redistribution of the estate. You may also contest the will if the person died without making a will at all. A person who dies without a will is said to have died “intestate”. A will can also be contested if it is found to be invalid. To test the validity of the will you must mount a challenge to the will.

Spouses

If you are the surviving spouse of a person who has passed away you are eligible to contest. You are a person’s spouse if you were their wife or husband at the time of their death.

Former spouses

As a former spouse you can be eligible to contest.

De facto partners

If you were living in a de facto relationship with a person when they passed away you are eligible to contest. This includes those who were in same sex relationships.

Children

If you are a child of a person who has passed away you are an eligible person who can contest. The term ‘child’ includes adult children, children under 18 years, as well as adopted children.

Step children

Being a step child does not, of itself, make you eligible to contest, however, you might still be eligible if you were dependent on the person who has passed away (see below).

Grandchildren

If you were wholly or partly dependent upon the person who passed away at any time and you are their grandchild you are eligible to contest.

Members of the deceased’s household who were dependent on the deceased

If you were wholly or partly dependent upon the person who passed away at any time and you were a member of that person’s household at any time you are eligible to contest.

People in close personal relationships who lived with deceased

If you were living with a person when they passed away and you had a close personal relationship with them you are eligible to contest.

If you are not an eligible person, then you have no entitlement to contest a will.

However, you may still be in a position to challenge a will or bring other will disputes to the table. The best way to find out whether or not you are eligible is to simply give us a call to book in a free assessment or send us a message by using the form at the bottom of this page.

Yes, there is a time limit to dispute a will, but this differs depending on the state.

NSW: If the person died on or after 1 March 2009 you have 12 months from the date of their death to make a will dispute claim.

Note: If you have a good reason you may be able to bring a claim anyway.

Legal advice should be sought as soon as possible after the death. Urgently seeking legal advice will ensure that your rights are protected. Call us now to organise a free assessment or send us a message using the form at the bottom of this page.

If there are special circumstances you may be able to obtain an extension of the time limit to contest the will. Special circumstances in will dispute cases include situations where:

• You did not know the person had died
• You were unaware of the relevant time limits

You should seek legal advice as a matter of urgency. Any further delay could jeopardise your claim. Call us now to organise a free assessment or send us a message using the form at the bottom of this page.

See Also: What happens if the time limit to contest proceedings has expired?

In determining whether you should be entitled to receive provision from a will the court considers the following factors:

1. Whether any provision you have already received is adequate for your proper maintenance, education and advancement in life.
2. Competing claims of other eligible persons or beneficiaries.
3. The nature and duration of your relationship with the person who has passed away.
4. Your financial resources and earning capacity.
5. The size of the estate. For example, you may have a very strong claim on the grounds of relationship and need (see Q.9), but if there is only $20,000.00 in the estate, then there is very little scope for a court to order provision.
6. The financial circumstances of people you cohabit with.
7. Contributions you made, both financial and non-financial, to the person who has passed away.
8. Any provision the deceased person made for you during their lifetime.
9. Aboriginal or Torres Strait Islander customary law (where relevant).
10. Certain categories of eligible persons must establish that their relationship with the deceased person was such that they ought naturally to have been a beneficiary.

Note: The above criteria has deliberately been generalised because we cannot provide specific advice on whether you might have a will contest claim until we can determine all factors. To help us determine all factors required for a will dispute simply give us a call to organise a free assessment or send us a message using the form on the bottom of this page.

You might be able to claim upon assets which do not strictly fall into the deceased person’s estate. Such assets are known as ‘notional estate’.

The following are examples of ‘notional estate’:

• The deceased person gave an asset away, or sold it to someone for less than its value, within three years of the death;
• The deceased person had superannuation or life insurance;
• The deceased person held an asset (such as a house or bank account) jointly with another person;
• The deceased person made a loan to someone and forgave the loan on their death, or within three years of their death.

There is no way of knowing from the outset how much you could receive when you dispute a will. If you are an eligible person, among other things, the court will be looking to make sure you received adequate provision. In determining whether you received adequate provision the court will have regard to the money you need for proper maintenance, support, education and advancement in your life.

If you would like a free assessment we would be happy to have a chat to you over the phone and generally discuss the outcomes of related cases in which people in similar situations have contested, challenged or disputed a will. Call us for a free assessment or send us a message using the form at the bottom of this page.

One of the factors (see Q.6) that the court uses to determine whether you should be entitled to receive provision from the will is whether you (as an eligible person) have ‘need’. To determine need the court initially considers whether your day-to-day maintenance, education and advancement in life have been provided for adequately under the terms of the will of the deceased.

The court will then take a look at your current situation by reviewing your finances, debt, mortgage repayments, medical expenses (including prospective future medical expenses), education needs (including the education needs of your children), vehicle expenses, rental situation and place of employment (including your salary and length of employment). The court will review your current situation as a whole and make a decision on whether the deceased’s will should be altered to make further provision for you.

Establishing need is not a straight forward process and the court’s decision is dependent on a wide range of factors. We recommend giving us a call to discuss your situation, as every situation is different. We’ll be able to advise you if you have an adequate level of need to be able to successfully contest the will.