Challenging A Will – What Are Your Rights?

When someone close to you passes away, the very last thing on your mind is usually what you stand to gain from their estate. But if you have been left out of the will or the deceased hasn’t left you much, it is important to act quickly. This blog will set out some of the rights you may have and some of the important timeframes you need to be aware of.

You only have 12 months to challenge a will and that time starts running from the date of death.

The first step is to determine whether you are an ‘eligible person’ to make a family provision claim in relation to the deceased’s estate. Section 57 of the Succession Act 2006 (NSW) defines an ‘eligible person’ as:

(a)   the deceased’s wife or husband;

(b)   the deceased’s de facto partner;

(c)   a child of the deceased;

(d)   a former wife or husband of the deceased;

(e)   a grandchild of the deceased who was wholly or partly dependent on the deceased;

(f)   a person, usually a member of the deceased’s household, who was wholly or partly dependent on the deceased; or

(g)   a person with whom the deceased was living in a close personal relationship at the time of death.

The second step is to show the court, by evidence, that the provision made for you in the deceased’s will, if any, is inadequate for your ‘proper maintenance, education and advancement in life’. The court will look at your personal financial position, the size and nature of the deceased’s estate, your relationship with the deceased and the relationship between the deceased and other people who have legitimate claims on the estate.

The third step is to convince the court that it is, in fact, appropriate to make the order you seek. For example, you may have satisfied the first two steps but the estate may be so small that creditors may not even be paid. In those circumstances, the court may not make additional provision for you even if you are a very needy person.

It is a good idea to obtain expert legal advice if you are considering challenging a will. Among other things, your solicitor will be able to tell you what your prospects of success are before you decided to start any court proceedings.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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