Do not try to contest a will by yourself. You need to speak to a lawyer first to see where you stand. If you have been left out of a will, you need to discuss your situation with a qualified legal expert. To contest in New South Wales (NSW), you need to make a family provision claim.

family provision claim

Who Can Contest a Will in NSW?

You can challenge the will if you are considered an eligible person. This eligibility covers the following people:

  • A spouse
  • An ex-spouse
  • A de facto partner
  • A child
  • A grandchild
  • A member of the household
  • A close personal relationship

Making a Determination

If you are a spouse contesting a will in NSW, the court will only agree to an order of provision or further provision if it is shown that the arrangement made is not adequate. The court determines sufficiency in this respect by using the following criteria:

    • The nature and worth of the estate
    • The kind and length of the relationship
    • The financial requirements and resources of the parties
    • Any intellectual, mental, or physical disability of an interested person
    • The age of the husband or wife
  • Contributions made to the estate
  • Any provision made to the spouse by the deceased before or after death
  • Whether the spouse was wholly or partially maintained by the deceased before his or her death
  • Whether any other person supports the surviving spouse

Why You Need to Consult with a Lawyer

While each case features specific reasons for making a claim, a surviving husband or wife possesses a moral claim to the estate. That is why you need to obtain legal advice when you are contesting a will and are a surviving spouse.

You also have the right to contest a will if you were formerly married to the deceased person. The Succession Act of 2006 allows a former husband or wife to commence proceedings to seek further provision or an order of arrangement from the decedent’s estate.

Asserting Your Rights

Whether you are an ex-husband or wife or a current husband or wife, your eligibility does not necessarily mean your claim will be approved. The Court requires that any person challenging a will show that he or she has a right to make an order. In the cases of ex-spouses, the partner must establish factors warranting, such as the closeness of the relationship following the divorce.

As you can see, challenging a will can indeed be complicated. That is why you need to confer with a legal professional before you initiate the process. If you are well prepared in this respect, you can make the whole process go easier and you will realise a more favourable outcome for your efforts.