A Quick Guide to Contesting a Will

A Quick Guide to Contesting a Will

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If you feel you’ve been unfairly left out of a family member’s or loved one’s will, it can be stressful and disheartening. However, there is something you can do if you feel you have been unfairly left out of a will. This occurs mostly in cases in which you have not been awarded adequate provision after the passing of a loved one or relative. Contesting a will can be done with legal help so that a team of professionals can learn about your situation and how best to help you.

Before you begin, there are a few things you should understand about the legalities of a will and how to contest a will. Here is a quick guide to contesting a will in NSW:

What “Contesting a Will” Really Means

In the case that you feel unfairly left out of a valid will and inadequately provided for, you may contest a will. You can also contest if a person died and did not leave a will or the will was found to be invalid. However, if you are challenging the validity of the will, you will instead mount a challenge to the will first instead of contesting. If the court favours you, the estate and assets can be redistributed.

Eligibility to Contest

If you qualify under any of the categories below, you may contest the will. If you do not, you may not contest the will. However, you may still be able to mount a challenge to the validity of the will.

Spouse: Spouse at the time of death.

Former Spouse: Former spouse before the time of death.

De Facto or Common-Law Partner: Common-law partner or living in a de facto relationship at the time of death.

Children and Stepchildren: Children of the deceased including adult children, children under 18 years of age, and adopted children. If you are a stepchild to the deceased, you may contest if you were a dependent at the time of death.

Grandchild: Grandchild and a dependent at the time of death.

Dependent: Anyone who was a member of the household and dependent on the deceased at the time of death.

Those in Close Relationships with the Deceased: Living with the deceased at the time of death and had a close relationship with him or her.

Factors Considered

The court will make a determination based on a number of factors including but not limited to:

  • The nature of your relationship with the deceased
  • Your earnings and current financial stability
  • Contributions you made to the deceased, financial and otherwise
  • The adequacy of the provisions provided for education, maintenance, and advancement
  • Aboriginal or Torres Strait Islander customary law (when applicable)

Time Limit

You have twelve months from the day the deceased passes to make a claim and contest. The only exceptions to this time limit apply if you were not aware that he or she passed away or were not aware of the time limit.

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