Contesting a Will
In New South Wales, those who can commence proceedings for provision include:
- A spouse (includes a de facto spouse) and a person living in a domestic relationship (including a member of a same-sex couple).
- Child of the deceased.
- Former spouse of the deceased.
- Other dependent persons (for example, a financial dependent) who is a grandchild or was a member of the same household.
Under the family provision legislation a claim must commence within 12 months of the date of death of the deceased person but this may extended if sufficient cause can be shown.
Alternatively, it may be that some clients, who have been left without adequate provision on the death of a person who has made an inadequate will, or who has died intestate, need information on contesting or disupting a will. Legal advice is necessary here, but general information may be relevant to determine whether such a claim might be possible. The relevant legislation is specific to each State and Territory, but there are common elements to all the regimes.
By and large, the family provision legislation throughout Australia is relatively uniform. Essentially, each of the States and Territories confer powers on the court for further provision out of the estate of a deceased person if the provisions of the deceased’s will, allowing for a party disputing a will if it fails to make adequate provision for the property maintenance and support of an eligible person.
If a will has already been signed by the will-maker, the only way to change the will is to make a new one or create a codicil. A codicil is a written document added to a will that contains clauses additional to the original will.
Revoking A Will
To revoke a will, the Succession Act stipulates that this may only occur through:
- an order of the court
- marriage, unless the will was made in anticipation of marriage
- divorce or annulment can revoke parts of the will, but not the whole will
- making a later will
- a declaration of intention to revoke a will that is witnessed in the relevant manner and satisfies the court
- the testator (or some other person in their presence who is directed by the testator) burns, tears or destroys the will with the intention of revoking it
- the testator (or some other person in their presence who is directed by the testator) writes the will in a manner that makes the Court satisfied that the testator intended to revoke it
If you like more information or advice regarding Contesting a Will please complete and submit the Express Enquiry form on the top right hand side of this page or call or on 1300 784 667 to arrange an appointment.
