Who can Challenge a Will?
Social changes in recent years have seen increasing numbers of people with more complicated family structures. Under the Succession Act 2006 in NSW, contesting a Will is not limited to spouses and children; friends or relatives who believe they have not been sufficiently provided for are also entitled to contest a Will.
This includes former spouses, de-facto partners, same-sex partners and any other dependants who may be wholly or partly dependent. These may even include grandchildren or anyone living in a close personal relationship with the deceased.
In order to be successful in a Will dispute, you will need to prove to the Court that adequate provisions were not made for your maintenance, education or advancement in life.
There are a number of people who may have the necessary ‘standing’ or legal entitlement to challenge a Will.
- Any Person named in the Will (the beneficiaries)
- Anyone who would stand to inherit if the Will was invalid. For example, persons who have been ‘disinherited’ or excluded from the Will.
Specifically, the Persons who can challenge a Will include:
- Former Spouses
- ‘De Facto’ partners. De facto partners are partners who were living with the deceased when they passed away, in a manner similar to that of husband and wife. This includes those in same-sex relationships.
- Children under 18, adult children and adopted children. Step children are also eligible to contest the Will if they were dependent on the testator.
- Grandchildren are eligible to contest a will, as long as they were at least partially dependent on the deceased.
- Members of the deceased’s household who were wholly or partly dependent on the deceased. This includes those in ‘close personal relationships’ with the deceased.
- Parents may contest a Will if they are dependant on the deceased.
Is There a Time Limit on Contesting a Will?
Yes. In NSW, the time limit on challenging a Will has changed recently you must contest a Will within 12 months of the date that the Will-maker passed away. If you feel you have been left out of a Will, you need to consult a Succession Act lawyer such Dawson & Gardiner quickly.
What Will I Get If My Challenge Is Successful?
If you are successful in contesting a will, the court will ‘set aside’ the Will. This has the legal effect of making it as though the Will never existed. None of the Wills provisions will be applied and the estate will be distributed according to the second-to-last will, if one exists.
If no other Will exists, or can be found, the laws of ‘intestate succession’ apply (Intestacy is the state of having died without a will). The laws of intestate succession mandate how an estate is to be divided and in this situation provision is made for certain relatives and dependants, regardless of the wishes of the deceased.
As with all areas of Wills and Estate Law, each matter is unique to those involved and everyone’s circumstances will be different. If you have further questions about this subject, please contact our Wills & Estate lawyers at Dawson & Gardiner on 02 4954 8666