What is involved in the process to contest a Will?

A Will is a legal document that contains the intentions of a deceased person as to the distribution of their Estate. On occasion however a family member, a dependent or other closely related person may be excluded from benefiting under the Will. The Succession Act empowers the Court to make provision for a person who has been excluded or otherwise not left an adequate provision in the Will.

Only an eligible person may contest a Will. An eligible person would include:

  • The wife or husband of the deceased at the time of their death
  • A person with whom the deceased was living in a de facto relationship at the time of their death
  • A child of the deceased or a child for whom the deceased had parental responsibility for
  • A former spouse
  • A person dependent upon the deceased
  • A grandchild of the deceased who was at the time of the death or at any other time a member of the household of the deceased
  • A person living in a close and personal relationship with the deceased at the time of their death

An eligible person has 12 months from the date of death to bring a Family Provision Claim. The claim is prosecuted in the Supreme Court of New South Wales. An application is filed supported by Affidavit evidence which would set out the nature of the relationship had with the deceased, the applicant’s financial circumstances, the needs of the applicant and other relevant matters.

Once eligibility has been established the Court will then consider whether adequate provision has been made for the applicant. In addressing this enquiry the Court considers a number of factors such as the nature and duration of the applicant’s relationship with the deceased, the applicant’s means and needs, any financial or non-financial domestic or caring contributions made by the applicant, the size of the estate, the obligations of the deceased towards the applicant or other beneficiaries, the age of the applicant, the character and conduct of the applicant before and after the death of the deceased and any other matters considered relevant by the Court.

Brydens Lawyers are the experts in the prosecution of applications to contest a Will. Brydens Lawyers will provide comprehensive advice and representation to guide you through the process for the best possible outcome in the most cost-effective manner. For any enquiry concerning the contesting of a Will, contact Brydens Lawyers without delay on 1800 848 848 or at brydens.com.au. At Brydens Lawyers – #WE DO Will Disputes.