What the court may consider when you challenge a will

Date: Mar 13, 2014

If you have been treated unfairly in a loved one's will or received inadequate provision from their estate, you may be able to challenge a will.

A wide range of people are considered eligible to dispute a will, including the spouse or de facto partner of the deceased, their children or grandchildren (provided they were dependents of the deceased at some point) and their ex-spouse - to name just a few.

But, once the judge has determined your eligibility to challenge a will, what happens next? How do they decide whether or not to grant a family provision order, or what to give you?

The Succession Act 2006 (New South Wales) contains an extensive list of the factors a judge will take into consideration before making a ruling.

First, they will look at your relationship with the deceased, including its "nature and duration". If you are in an estate dispute over your mother's will and haven't spoken to her in 30 years, for example, this could impact the outcome of the case.

They will also take into consideration the "responsibilities and obligations" owed by the deceased to you, and whether you were being entirely or partially maintained by them at the time of their death.

Another factor that could play a role is the size of the deceased's estate. If you are successful in your claim, this may have an effect on how large or small a sum you receive.

Your current financial situation and your future monetary needs will also be taken under advisement, as will any "contribution" you have made to the deceased's estate - financial or otherwise.

The judge will also look at your age, and whether you have any physical, mental or intellectual disabilities. 

If the deceased made any provision for you during their lifetime or from their estate, this will naturally be a deciding factor in the case as well.

Other items that may be brought to the table include whether there is any evidence (aside from their will) of the "testamentary intentions" of the deceased, and Aboriginal or Torres Strait Islander customary laws, if they are relevant.

Finally, it should be noted that your "character and conduct" before and after the will-maker's death may be scrutinised by the judge. 

If you are in need of some advice on estate disputes, the team of estate lawyers at Craddock Murray Neumann should be your first port of call.