Contesting a Will as a Child

A child of the deceased is an Eligible Person pursuant to section 57 of the Succession Act 2006. A child includes children adopted by the deceased but does not extend to step-children. Evidence of eligibility for a child is best established by a birth certificate annexed to the affidavit support to the claim commencing proceedings.

Eligibility does not mean that the child will be successful in contesting the will and simply allows the child to commence proceedings, which must be filed within 12 months from the date of death.

The success of a claim by a child of the deceased will depend on whether the Court accepts that the provision made for the child in the will (or if there was no will in accordance with the rules of intestacy) was inadequate. If the Court accepts the provision is inadequate the final stage is the determination of what amount, if any, should be paid to the child from the estate of the deceased person (in addition to the amount the child might be entitled to under the terms of the will). In making this determination the Court will look to a number of matters including:

• any family relationship, including the nature and duration of the relationship.
• the nature and value of the estate.
• the financial resources and needs of all interested parties.
• any physical, intellectual or mental disability of all interested parties.
• the age of the child.
• any contribution made to the estate or welfare of the deceased.
• any provision made for the child the deceased before or after death.
• whether the child was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
• whether any other person is liable to support the child.

Each case turns on its own particular circumstances and a child can have a strong or weak moral claim to the deceased person’s estate depending on the above matters and competing interests. It is for this reason that claims by children, particularly adult children should be prepared thoroughly and by lawyers experienced in the area.

If you are an executor of a deceased estate, or a child who has been left with inadequate provision from the estate then we are able to meet with you, or speak with you on the phone, for a no obligation assessment of your case, at no cost. Get in touch by contacting your nearest Prime Lawyers office or by making an enquiry online.

We have contested estates lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.