Australia: Contesting a will in the family provision context

Last Updated: 3 July 2019
Article by Joshua Dale


It is a generally accepted principle of law that an individual is entitled to leave their property by Will to whomever they wish when they die. However, there are unique circumstances where the Court may alter the terms of the Will.

If you believe that the deceased in his or her Will has not made appropriate provisions for you, you may be entitled to contest its terms by lodging an application with the Court for an order for provision to be made out of the deceased's estate to you (known as the family provision application). Contesting a Will is often a confronting process, and there are a number of factors which you should consider when deciding whether or not to contest a Will.

Things to Consider

Adopting a 'human approach' to these situations can often make the process much easier. If you have an amicable relationship with the executor(s) and/or other beneficiaries of the Estate, you should consider whether or not you can voice your concerns in an attempt to reach a solution through common ground.

When deciding whether or not you should contest a Will, there are a few questions that you should ask yourself about your current circumstances:

  1. Are you financially secure?
  2. Do you have any health concerns or disabilities?
  3. Are you independent?

This is because not everyone is entitled to contest a Will. Eligibility is determined by the Succession Act 2006 (NSW). The Act states that the following are considered to be eligible persons who may make a family provision application within 12 months from the date of death of the deceased person:

  • a spouse,
  • a de facto spouse,
  • child of the deceased,
  • former spouse,
  • a person who:
    1. was totally or partially dependent on the deceased at any time which need not necessarily be at the date of death of the deceased, except in the case of grandchildren, and
    2. was a member of the same household as the deceased at any time (for example, step-children or parents), or
  • a person, whether or not related by family, with whom the deceased person was living in a close personal relationship as at the date of death of the deceased, and one or each of whom provides the other with domestic support and personal care at the time of the deceased's death.

While all of these people may be eligible, there is no requirement for a will to treat all dependants equally.

You should also consider what the total size of the Estate might be. The Court will be more reluctant to intervene in an Estate that holds minimal value.

While a solicitor with experience in family provision applications will be able to help you determine whether or not your Application has reasonable prospects of success, it is worth your time to consider each of these factors and know that they may be relevant.

Emotional Cost

Estate litigation can be a long process and typically arises in circumstances that are emotionally difficult. It can cause irreparable damage to relationships within a family. You should consider the emotional cost of contesting a Will and ask yourself whether or not any amount of money will be worth the potential loss of relationships with your family.

Financial cost

Having considered the size of the Estate in question, it is also important to understand the cost of pursuing an Application to contest a Will. Each party with an interest in the Estate will require their own legal representation (including the executors or administrators), and depending on the outcome of the Application, a portion of these fees may be deducted from the Estate itself.

If your Application is unsuccessful, you will also be at risk of having to pay the legal costs of the Estate, as well as your own.

If you choose to engage a solicitor, they will outline the full cost implications of contesting a Will.

How to get started?

If you've decided that you would like to contest a Will and believe that you will be eligible, the next step is to make an appointment with a solicitor who is experienced in Estate Disputes. Carroll and O'Dea have a number of specialists who can assist you with this.

Your solicitor will outline what the process involves and provide further detail about any risks that may arise. After undertaking some preliminary investigations, a Summons will be filed in the Supreme Court of New South Wales, together with an Affidavit which sets out the evidence in support of your Application for the Court's consideration.

The executors or administrators of the Estate will then be given the opportunity to respond to your Application with their own evidence. The Application will typically proceed to a mediation where the parties will attempt to resolve it. If the Application is unable to resolve at mediation, it will then progress to a hearing.

Finally if you have made an appointment with a solicitor regarding an application to contest a will, try to provide as much detail as possible about your current financial situation, about your relationship with the deceased and about any contributions you may have made to the deceased while they were alive. If you have any documents that you think may be relevant, bring them to your first consultation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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