If someone you’ve had a close relationship with has died and left you out of his or her will, you may be able to contest it. While there are several reasons a will can be legally contested, only certain people are allowed to do so under the law. Here are some of the people who are can contest a will and some of the reasons they can do so.
To be able to contest a will, you need to be considered an “eligible person” by the law. These persons include:
- A surviving spouse.
- Life or de facto partners at the time of the deceased’s death.
- Children from a marriage or de facto or domestic relationship of the deceased.
- A former spouse.
- Anyone who might have been wholly or partially dependent on the deceased.
- A grandchild who, at the time of death or at any other time, was a member of the deceased’s household.
The eligibility for people who can contest an existing will comes from the Family Provision Act.
Considerations for Contested Wills
Most of the times wills are contested are because someone was unhappy with the amount that he or she was left. Although there is no legal obligation, the court will consider the moral duty of the deceased to care for those to be considered eligible persons. However, if the deceased and those eligible were estranged for some reason, then the court may not hear the claim.
When contesting a will in NSW, the first consideration is what the relationship was between the claimant and the deceased. This consideration is especially important if the claimant was an eligible person who was left out of the deceased’s will. Then the court considers whether the provision was adequate to take care of his or her support and education and how it will help his or her advancement in life.
If there are other eligible people or beneficiaries contesting the will, then those claims will also be considered. However, if one of the claimants is eligible as a former spouse but he or she is remarried or in another relationship, they may dismiss that claim. If the claim is being made for his or her children, it will still be considered, especially if there was a strong and continuing relationship between the children and the deceased.
The size of the estate is also considered because if it was small then the court probably cannot order a provision since one wouldn’t be possible. If the claimant has his or her own financial resources or is able to or is earning enough money to support himself or herself, a provision may not be changed by the court. They will also consider the finances of anyone cohabiting with the claimant and any financial or non-financial contributions the claimant made to the deceased.
Once all the factors have been considered, the court will either decide that adequate provisions were made in the will or they will increase them. Along with part of the estate, eligible persons may be able to make claims on the deceased’s notional estate. To find out about contesting a will, consult with a wills or probate lawyer.