3 groups who can contest a will in NSW

Date: Oct 01, 2014

If you are engaging in estate planning, or thinking about contesting a will, there are some things you need to know about will disputes. For those drafting a will, it is important to have the right protections in place, while those who wish to contest will need to know if they are eligible.

While the conditions of every estate dispute are unique, here are three of the most common groups who choose to contest a will.

Family members

Challenges to estates will often come from within a family, especially if certain members of a family feel they have not received a fair allowance. De facto partners, grandchildren and those in a same-sex relationship with the deceased are all also eligible.

If individuals are pursuing a share of an estate they will usually have to prove that they were dependent on the deceased and that the current provision does not adequately reflect that dependence. 

Those who have not received adequate provision

Under NSW law, contesting a will isn't limited to members of the deceased's immediate family. In fact, anyone who was dependent on the deceased is able to challenge the contents of a will. In some situations, wills may be challenged by former partners as well.

As with family members, the key question that the courts will consider is whether or not the plaintiff was dependent on the deceased and to what degree. 

Those who feel the will has not been executed properly

Sometimes a will is contested because of the way that it has been executed, rather than because of any problems with the provisions contained within the will itself. It falls on the executor of the estate to ensure that assets are distributed properly, meaning that any impropriety on their part can trigger a legal challenge from the beneficiaries.

For those drafting a will, this provision highlights the importance of choosing the best executor for your estate. Given the responsibility that they will hold, and the potential problems that can arise through mismanagement, choosing the best candidate is essential.

With so many groups having the potential to contest a will, it is important to make sure that you plan your estate with the help of a wills and estates lawyer. They will be able to offer you the most comprehensive advice on your position, ensuring that your estate is not exposed to a legal challenge.