Who can contest a Will in NSW?

There are a number of ways to contest a will in NSW. 

A will may be contested on the basis that the deceased person lacked the testamentary capacity to make the will. This may be the case, for instance, where the will is made very close to death of the deceased person in their old age, or illness. Similar to contesting the will on the basis of capacity is a contest to a will on the basis that the deceased person did not know and approve of the contents of the will.

This differs to the first ground for the issue is not that the person could not make a will (which is the focus of with testamentary capacity), but rather whether the deceased person did make the will on the terms propounded. This may be the case where a will is signed but the terms not properly understood by the testator, or not evidencing their intention. 

Wills may also be contested on the grounds of fraud or undue influence. 

More commonly, wills are contested in accordance with the statutory provisions of the Succession Act 2006. 

Chapter 3 of the Succession Act 2006 is titled ‘Family Provision’ which is why contesting a will under the Succession Act is generally known as Family Provision. 

The Family Provision section sets out the requirements for contesting a will which include the people who can contest a will. Those people are defined by the legislation as ‘Eligible Persons’.

There are 7 categories of Eligible Person. Those categories are:

1. Husband or Wife.

2. Ex-Husband or Ex-Wife.

3. De Facto Spouse.

4. Child.

5. Grandchildren wholly or partly dependent. 

6. Member of the Household wholly or partly dependent. 

7. Close Personal Relationship.

If you do not fall within one of these categories then it is not possible to contest a will under the Family Provision chapter of the Succession Act. 

If you do fall within one of these categories, then depending on the category, you may also be required to establish factors which warrant the making of an order.    

Although eligibility can appear to be a simple matter at first blush (and in many cases it may be) proceedings of this kind are complex. Proceedings are commenced in the Supreme Court of New South Wales and must be commenced within 12 months from the date of death, unless the Court extends to the time to do so. 

A well prepared case by lawyers experienced in the area can mean the difference of tens of thousands of dollars to the end result. Prime Lawyers has experience acting for plaintiffs contesting wills and are uniquely experienced being regularly instructed by executors to defend wills. 

If you have a question concerning a will, including whether you can defend or contest the will, then get in touch with our contested estates division by calling or making an enquiry online to receive a no obligation assessment of your case. There is no fee to do so. 

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