For a close family member, being left out of a will can be disappointing, especially if you were on good terms with the loved one who passed away. However, if you suspect there are problems with the way the will was written or how it was drawn up, you may be able to contest it. Here are some of the reasons wills can be contested, and by whom.
Reasons to Contest Wills
There are only a few reasons a will can be contested after it has been read. A will can be contested if it didn’t leave the required provisions for certain family members, or if there is reason to believe the will is invalid. The validity of a will can also be questioned if it is believed the will is a forgery, the will was made under undue influence upon the deceased, or the deceased did not have the mental capacity to make out a will.
Who Can Contest a Will?
Contesting a will in NSW can only be done by certain people known as “eligible persons,” which include the following:
- The wife or husband of the deceased
- The deceased’s partner in a de facto relationship
- A former wife or husband of the deceased
- A child of the deceased
- A grandchild or a member of the deceased’s household who was wholly or partially dependent on the deceased for support
- Someone who had a close personal relationship with the deceased, but wasn’t paid for it, such as a roommate
Others, such as parents, siblings, step-children, or a former de facto spouse may be an eligible person if they were wholly or partially dependent on the deceased for support or were a member of their household.
Obligation to Support
Under the Succession Act of 2006, a moral obligation to the deceased’s spouse or their partner in a de facto relationship is assumed. It also applies to children or adopted children of those relationships. So, if any of these people are left out of the will, it can be contested for that reason as well. However, if there is evidence to show that the deceased and a claimant were estranged, then there is no obligation to leave them support.
Time Limit for Contesting
If a will is going to be contested by one of the eligible persons, there is a time limit they need to meet for doing so. A claim must be made within twelve months of the deceased’s date of death. However, if the date of death is unknown, the court can determine a date of death that is within reason. If an eligible person contests a will after the twelve months have passed, a time extension can be granted by the court if there is “sufficient cause” for the extension.
To contest the will of a deceased in NSW, an eligible person must have lived within the state of NSW or owned assets in NSW. Where they live does not matter. You should hire a lawyer with knowledge of will and probate laws within the state so your claim is made correctly when you want to contest a will.