Hire a Lawyer: Find Out If You Can Contest a Will

PUBLISHED: May 9, 2017

If there is one primary question to ask when thinking about and discussing a will, that question involves “entitlement.” The general rule is that when a person creates a will, he or she is stating his or her final wishes for how his or her property and assets should be distributed. When the individual passes away, the will is used to guide that distribution. Most people leave their property to their children, spouses, life partners, or parents.

In some cases, the estate of the deceased is left to charities, friends, or someone outside the immediate family as the will indicates. In these situations, some family members or dependent members of the household can contest the will to get what they rightly deserve.

According to the Family Provisions Act 1982 (NSW), persons who are entitled to contest a will include: wife or husband, child of deceased or child of a domestic relationship with the deceased, former wife or husband, or a person who was wholly or partly dependent on the deceased. The list also includes a grandchild of the deceased who was a member of the household.

Is There Need?

Keep in mind that the only individual who should give you legal advice when it comes to contesting a will in NSW is an attorney. You should enlist the aid of a legal professional and share all the details about your situation, allowing him or her to help you make the decision about whether you should proceed and how you should proceed. The key, beyond the above information about the eligibility of specific individuals, is showing a need that will warrant the court changing the will.

Your lawyer can help determine if there was a “moral obligation” on the deceased to provide for the person contesting the will but the Court has the final say as to altering the will. This moral obligation is assumed with spouses, children, adopted children, or children of a de facto relationship that the deceased was in. There are certain conditions in which this can be changed, just as there are conditions in which the person contesting can be shown to have cause to contest.

Talk to Your Lawyer About Need

If you have questions or concerns about where you stand in relation to the will of a deceased person, your first step should probably be to contact a lawyer. It’s important to prepare documents and information so that the Court can look at current finances, educational needs, medical expenses, etc. to determine if there is need. The Court may not always change the instructions of the deceased as stated in the will.

If you’re a step-child of the deceased, you don’t have an automatic right to contest. Step-children are not automatically eligible persons. It’s also important to understand where a grandchild stands when a grandparent passes away. Grandchildren do not have the automatic right to approach the Court for provision from the estate. They must also establish that they are eligible people and there are specific requirements for this to happen. Financial dependency is an important factor. Be sure


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