Under What Circumstances Can an Unfair Will Be Tested?


It’s an absolute tragedy, but often when someone passes away, disputes arise in relation to the will that he or she has left behind. Most of these disputes, particularly intra-family disputes in relation to the fairness of a will, cannot be remedied via legal means. The law is simple and clear on this point: when someone passes away, he or she entitled to leave his or her property to whomever he or she wishes via means of a written will.

There are, however, a narrow set of circumstances under which a written will can be contested. These circumstances generally involve situations in which an estate has been bequeathed to a third party, including doctors, friends, or charities. In this scenario, the law, as set out in the Family Provisions Act of 1982, provides that “eligible persons” are able to contest the will.

Who Is an Eligible Person?

You might now be wondering whether or not the law deems you to be an “eligible person”. Regardless of how meritorious your claim or how unfair the will, the law defines who can contest a will in NSW very narrowly. Only certain people are able to contest a will under the relevant legislation. These people are:

  • The wife or husband of the deceased person at the time of his or her death (including de facto spouses).
  • A child of the deceased, or a child of someone who had a domestic relationship with the deceased, such as a step-child.
  • A former spouse of the deceased.
  • Any person who at any particular time was wholly or partially dependent on the deceased.
  • A grandchild of the deceased person or someone who at any particular time shared membership of a household with the deceased.

If you don’t fall into any one of these categories, then it’s probable that you have no access to a legal remedy in terms of contesting a will. If you do, however, you will have to establish more than your eligibility in order to make a successful claim.

So, What’s the Next Step?

In order to be successful, the onus is on you to demonstrate to the court that there’s a good reason that absolutely warrants the amendment of the last will and testament of a deceased person in such a manner as will benefit you financially.

Additionally, it is essential that you show the court that a moral obligation had arisen over the course of your relationship with the deceased person. This means that the deceased must be determined to have had a moral obligation to provide for your maintenance, your education, or other enhancements in your life.

So, in summation, not only do you have to fall into one of the very particular relational categories above in order to contest a will in NSW, you also need to be able to demonstrate that there’s a good reason for the Court to make an amendment to the will and that the deceased had a moral obligation to provide for you.