Who can contest a will in New South Wales (NSW)?

Introduction to Family Provision Claims in NSW

In New South Wales, a Family Provision Claim is a type of legal action where a person who has been left out of a Will makes a claim against the deceased estate. The Court may consider whether adequate provision was made under the Will for the applicant’s ‘proper maintenance,education or advancement in life’ and other relevant factors as outlined in the Succession Act 2009 (NSW) (‘Succession Act’).

When contemplating making a Family Provision Claim, there are various factors to consider which we will explore in a series of articles including:

1. Who can contest a Will in NSW?:
2. Whether you are an eligible person;
3. Timeframes and exceptions in Family Provision Claims;
4. What is considered to be ‘inadequate provision’ in a Family Provision Claim?; and
5. Court considerations and applicant financial need in a Family ProvisionClaim.

Who Can Contest a Will in NSW?

Under the Succession Act, a Family ProvisionClaim may only be brought by an eligible person being;

• ‍Spouse of the deceased at the time of the deceased’s death‍
• De facto partner at the time of the deceased’s death
• A ‘de facto relationship’ is defined in the Interpretation Act 1987 (NSW) as when two individuals have a relationship as a couple living together and they are not legally married to each other. A de facto relationship can still exist even if one of the individuals is legally married to someone else.‍
• Former spouse ‍
• Children being biological and adopted children of the deceased person. Step-children and foster children do not have legal status as children of a deceased person for the purposes of a Family Provision Claim. ‍
• Dependents: Dependence refers to a relationship where someone relied on the testator for some or all of their needs. This may take various forms including financial, emotional, or material.

1. A person who was at any time wholly or partially dependent on the deceased person and was a grandchild of the deceased;
2. A person who was at any time wholly or partially dependent on the deceased person and was a member of the household of the deceased person;
3. A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death being a relationship of personal care and domestic support.

Although step-children and grandchildren are not automatically eligible to make Family Provision Claims it may be that they are eligible if they had resided with the deceased person and were financially dependent on the deceased person.

It can be difficult to know whether you have the right to contest a Will, or to access the likelihood of succeeding in a Family Provision Claim. At HFK Lawyers, our Estates team have the necessary expertise and experience to advise you as to how to best proceed. If you feel that you may have been inadequately provided in the Will of your loved one, please contact our Estates team at (02) 9307 8900 or j.tsang@hfklawyers.com.au.

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