When a loved one passes away your focus is often on grieving, rather than contemplating what you may inherit from their estate. However, if you find yourself excluded from the will or left with minimal provisions, it’s crucial to take prompt action if you need to contest a will. In this blog, we’ll outline your rights and the important time constraints you should be mindful of.
When can I contest a will?
You have a limited window of 12 months from the date of death to contest a will.
How do I contest or challenge a will?
The first step is to determine whether you qualify as an “eligible person” to make a family provision claim regarding the deceased’s estate. In NSW, an “eligible person” can be:
- the deceased’s spouse,
- the deceased’s de facto partner,
- a child of the deceased,
- a former spouse of the deceased,
- a grandchild of the deceased who was partially or fully dependent on them,
- a person, often a member of the deceased’s household, who relied partially or entirely on the deceased for support, or
- a person who was in a close personal relationship with the deceased at the time of their death.
The second step involves presenting evidence to the court to establish that the provision made for you in the will, if any, is insufficient to cover your “proper maintenance, education, and advancement in life.” The court will consider factors such as your financial situation, the size and nature of the estate, your relationship with the deceased, and the relationships between the deceased and others with valid claims on the estate.The third step is to persuade the court that granting your request is appropriate. For example, even if you pass the first two steps, the court may decline additional provisions if the estate is too small to cover outstanding debts. In such cases, your financial need alone may not be sufficient for the court to intervene.
Do I need a lawyer to contest a will?
Seeking expert legal advice is the next step if you are considering contesting a will. Your solicitor can assess your likelihood of success before commencing any legal proceedings, and guide you through the process.
Have you been left out of a will? Seton Family Lawyers can help you contest a will
Seton Family Lawyers are experienced and accredited family law specialists. If you need help in challenging or contesting a will, contact us to book an appointment. Our team of family lawyers are located in Erina, NSW.
