Contesting a Will: Who Can Challenge and on What Grounds?

When a loved one passes away, their will is meant to clearly state how their assets should be distributed. Unfortunately, disputes often arise when family members or dependants feel they have been unfairly treated or excluded. In Australia, contesting a will is possible under specific legal grounds, but only certain people are eligible to do so. Understanding your rights under Wills & Estate Planning Law is crucial if you are considering a challenge.

Not everyone has the right to contest a will. Generally, eligibility is limited to those with a close relationship to the deceased. This includes:

• Spouses and De Facto Partners: A legally recognised husband, wife or de facto partner at the time of death may contest a will.
• Children: Biological and adopted children have legal standing. Stepchildren may also be eligible in some circumstances.
• Former Spouses: In certain cases, a former husband or wife can challenge a will, especially if they were financially dependent on the deceased.
• Dependants: Individuals who were financially dependent on the deceased at the time of death may also be eligible. This includes grandchildren or other relatives who relied on the deceased for support.

Under Wills & Estate Planning Law, there are several recognised legal grounds for challenging a will:

If the deceased was not of sound mind, memory or understanding when making the will, it may be invalid. For instance, if dementia or mental illness affected their judgment, the will could be contested.

A will must reflect the free wishes of the person making it. If it was created under pressure, coercion or manipulation, the will can be legally challenged.

If the will was tampered with, forged or created under fraudulent circumstances, it may not stand in court.

For a will to be valid, it must meet legal formalities, such as being signed by the testator and witnessed correctly. If these requirements are not met, the will could be invalid.

Even if a will is valid, the court may change the distribution if it fails to provide adequate support for eligible family members or dependants. This is often the most common reason wills are contested in Australia.

The process of contesting a will generally involves:

Strict time limits apply. In NSW, for example, claims must usually be made within 12 months of death.

Courts encourage disputes to be settled through mediation before going to trial, saving both time and legal costs.

If no agreement is reached, the case proceeds to the Supreme Court, which has the power to adjust how the estate is distributed.

While contesting a will is sometimes necessary to ensure fairness, it can also be emotionally and financially draining. Some key considerations include:

• Legal Costs – Costs may be paid from the estate, but not always. Losing a case could leave you liable for expenses.
• Family Conflict – Will disputes often cause long-lasting strain between family members.
• Time Limits – Acting quickly is vital to protect your rights.

From a planning perspective, clear and carefully drafted wills help minimise disputes. Steps include:

• Seeking professional legal advice when drafting a will.
• Regularly updating your will to reflect life changes.
• Communicating openly with family about your intentions.

These measures can reduce the likelihood of costly disputes and ensure your wishes are carried out.

Suggested External Links:

• NSW Supreme Court – Contested Probate Matters
• Australian Government – Attorney-General’s Department (Wills & Estates)
• Legal Aid NSW – Wills, Estates and Power of Attorney

Contesting a will in Australia is a complex process governed by strict rules under Wills & Estate Planning Law. Only certain people are eligible to challenge, and valid grounds must be established. Whether the issue is inadequate provision, undue influence or lack of capacity, seeking expert legal guidance is essential.

If you are considering contesting a will or need advice about protecting your estate from disputes,

Contact New South Lawyers today. We’ll guide you through the process with compassion and expertise.