Grounds for Contesting a Will in NSW

In NSW, a person can leave their estate to whomever they choose. This is referred to as testamentary freedom. 

In most cases, a person does not need to provide provisions for siblings in their will in NSW. 

However, there are circumstances where a sibling may have grounds to contest a will. Grounds for contesting a will in NSW by a sibling could include:

1. They were living with the deceased when the deceased died; 
2. They were provided the deceased personal care and support leading up to the deceased’s death;
3. They did not receive adequate provision from the deceased’s estate for their maintenance, education or advancement in life;
4. They have financial need or are suffering financial hardship;
5. They contributed to the deceased’s welfare or estate;
6. They are the deceased’s closest surviving relative.

Although these factors in isolation do not mean that the sibling’s claim will succeed, they may give cause to conduct further enquiries to see whether the sibling satisfies the formal criteria to bring a family provision claim in NSW. 

An experienced wills and estate lawyer will also be able to advise whether challenging a will in NSW may result in a favourable outcome. 

Eligibility: Can a Sibling Qualify as an Eligible Person?

Although a sibling is not automatically eligible, they may satisfy the definition of an eligible person in some circumstances. 

To constitute an “eligible person”, a sibling must establish:

1. They lived with the deceased at some stage and were financially dependent on the deceased at some stage; or 
2. They were living with the deceased in a close personal relationship at the date of the deceased’s death. 

A “close personal relationship” is a relationship (other than marriage or de facto) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. 

While some relatives have automatic eligibility to contest a will in NSW – such as a spouse, de facto partner, or child – other eligible persons such as a former spouse, dependent grandchildren, dependent former members of the deceased’s household and those in a close personal relationship, need to also establish that there are factors warranting the making of the application. The terms and factors warranting the making of the application are factors that create a moral obligation on the deceased to make provisions for the sibling. 

In other words, siblings fall within a class of claimants who must establish an additional requirement. Therefore, a sibling’s inheritance rights in NSW can be more complicated. 

What Evidence is Required for a Sibling to Contest a Will?

Strong documentary evidence increases the chances of succession family provision claims in NSW.

A sibling may rely on evidence, including:

Written evidence (an affidavit) and oral testimony

A sibling may rely on written evidence in the form of an affidavit and oral evidence to give their evidence on things including:

• Their relationship with the deceased. 
• The period of any shared residence.
• The nature and extent of any financial dependence. 
• The nature and extent of any domestic support and personal care provided to the deceased. 

Documentary evidence

A sibling may rely on documentary evidence, including:

• Leases and shared utilities – demonstrating the sibling’s period of residence with the deceased or in the deceased’s property. 
• Financial records – including bank statements demonstrating shared bank accounts or the nature and extent of any dependency.
• Photographs – demonstrating their relationship with the deceased, their address, and any care or welfare provided to the deceased. 
• Messages or letters with the deceased – demonstrating the nature of the relationship and the extent of any domestic support and personal care.

Evidence from other witnesses

Evidence from family members, friends, and neighbours may also be useful to demonstrate or corroborate the sibling’s location and period of residence, and the extent of any dependence or domestic support and personal care. 

The evidence for a family provision claim usually requires clear and documented proof. 

A sibling who is considering a family provision application in NSW should contact an experienced wills and estate lawyer who will be able to gather evidence that advances the sibling’s claim.

Possible Outcomes of Contesting a Will in NSW

The possible outcomes in the Supreme Court will disputes depends on the facts and circumstances of the particular case and each party’s willingness to negotiate. 

If a claim is successful, an outcome in inheritance disputes in NSW usually involves receiving a larger share of the inheritance, in the form of property (or property rights), money, or maintenance payments. 

A sibling may be able to engage in negotiations with the executor and any other relevant beneficiaries to obtain a favourable outcome. If an agreement can be reached, the parties can formalise the agreement using a Deed of Family Arrangement or similar document. 

If an agreement is not reached, the sibling may wish to commence formal court proceedings so the court can decide the outcome. Once proceedings have been commenced, the parties will be ordered to attend mandatory mediation. Mediation is where the parties meet with an independent mediator and the parties attempt to resolve the dispute. If an agreement is reached at mediation, the parties can formalise the agreement using a Deed of Family Arrangement or similar document. 

If negotiations and mediation prove unsuccessful, the sibling may either withdraw the proceedings (and face any cost consequences) or have the matter proceed to a final hearing. 

At the final hearing, the court will consider the evidence of all parties and make a determination on the claim. If the sibling is successful, the court may make orders for the sibling to receive an interest in property and/or a pecuniary legacy, or some other provision. 

If unsuccessful, the sibling may be ordered to pay the estate’s costs. If the unsuccessful party doesn’t agree with the court’s decision, the unsuccessful party may appeal the decision to a higher court (the Court of Appeal), which will cause further delay and costs. 

There are usually significant benefits to negotiating a favourable outcome without court intervention as this will reduce delays, reduce costs and avoid the uncertainty of court proceedings should the matter be allowed to progress to a final hearing. 

Unsure if You Can Contest a Will as a Sibling? Get Expert Advice from Empower Wills and Estate Lawyers

If you would like to discuss your eligibility to contest a will in NSW, or siblings rights under wills in NSW, contact Empower Wills and Estate Lawyers in Sydney, NSW now on 1300 414 844 to speak to one of our experts.

Empower Wills and Estate Lawyers are leading family provision claim lawyers in Sydney and have extensive experience in contesting unfair wills in NSW, deceased estate disputes in NSW, contest a will in NSW, inheritance disputes in NSW, will contests, challenging a will in NSW, and defending family provision claims. Call us today to speak to a will dispute lawyer in Sydney, and discuss your eligibility to contest a Will in NSW.

Strict deadlines apply to claims in each State of Australia, so call now. 

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.