Contesting a will is a legal process whereby a person who believes they have been unfairly left out of a will, or has not received as large a share as they were expecting may bring a claim against the deceased’s estate.

In NSW, contesting a will involves bringing a ‘family provision claim’ under the Succession Act 2006 (NSW). The law provides the courts with power to interfere with a deceased person’s testamentary intentions and alter the distribution of the deceased’s estate. There is a strict criteria that must be met for this to occur.

A spouse or a de facto partner may have a claim to contest a will in NSW if they have been left out of a will, or have received a share of an estate that they believe is inadequate.

Eligibility to Contest a Will

In NSW, only an ‘eligible person’ as defined by section 57 of the Succession Act 2006 (NSW) can contest a will.

This includes a spouse, de facto spouse, child, former spouse, a wholly or partly dependent grandchild or member of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death.

In NSW, inheritance rights for spouses have a significant influence on the distribution of assets in a deceased estate.

If a person dies without leaving a valid will (also known as dying ‘intestate’), then the rules of Intestacy apply. These rules are a precise formula stipulating division of assets in priority order – generally beginning with the spouse of the deceased as the primary beneficiary and cascading down through more remote relationships.

Grounds for Contesting a Will

There are many reasons why a person may wish to contest a will in NSW. However, crucially, only someone who satisfies the definition of an ‘eligible person’ – such as a spouse – can contest a will under NSW law.

Once a person is found to be an ‘eligible person,’ an expert wills and estate lawyer can help ascertain whether ‘adequate provision for the proper maintenance, education, or advancement of life’ of the eligible person has been made in the will in question.

It is not enough to simply be dissatisfied with the amount left to you in an estate. There is a burden of proof to demonstrate the amount left was ‘not adequate’ for your ‘proper’ maintenance, education or advancement of life in the specific context of your relationship with the deceased.

The Will Contesting Process in NSW

It is not an easy process to contest a will in NSW. It is essential to contact a specialised will and estate lawyer to help navigate the process.

The first step involves evaluating the eligibility of the person and the claim as prescribed by NSW law. Once this is confirmed, the executor of the estate is usually put on notice of a potential claim, which helps reduce the risk of the estate being distributed before the claim is analysed.

The process thereafter varies in time and difficulty, and can include formal negotiations between opposing parties, mediation, and court proceedings.

There are two critically important elements in the will contesting process in NSW. Firstly, any claim for contesting a will must be commenced (that is filed in court) within 12 months after the date of the death of the deceased person.

Secondly, it is the claimant (i.e. the eligible person) that has the burden of proving their claim, meaning the collation of relevant documentation and evidence is central to the success of any claim.

What the Courts Will Take into Account

Spousal Maintenance and Inheritance

Spousal maintenance refers to the financial support paid within a marriage or a former marriage, in circumstances where one party is unable to adequately support themselves.

Under the Family Law Act 1975 (Cth), a person may have responsibility to provide financial assistance to their spouse, former spouse, de facto partner or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

In the case of contesting a will, when someone loses access to marital assets or spousal maintenance following the death of their spouse, they may have a claim on the deceased’s estate.

A spouse’s right to maintenance may be taken into account by the court as “an obligation owed by the deceased person to the applicant” under section 60(2)(b) strengthening the spouse’s claim against an estate.

Property and Assets

A spouse’s right to inheritance will first depend on whether the spouse has been nominated as a beneficiary of the estate, which isn’t always the case, and secondly, any statutory rights under the Succession Act 2006 (NSW).

A spouse may have been left out of a will entirely or only be allocated a small share of an estate. This could lead to a will contest whereby the court has power to redistribute the deceased’s property and assets in some cases.

For many couples, it is inconceivable that a current spouse or de facto partner would be left out of a will – but it does happen. For example, a deceased may choose to leave their estate to their children in circumstances where the surviving spouse is independently wealthy. Other cases include where a Will which provides for the surviving spouse is later found to be invalid and the estate is distributed in accordance with an earlier Will, which does not provide for the surviving spouse.

Similarly, second marriages with children from previous marriages can sometimes lead to a current spouse contesting a will, where the deceased leaves the whole of their estate to their biological children instead of the surviving spouse.

In instances such as these, it is best to seek legal advice to ascertain if you do indeed have a family provision claim.

Prenuptial and Binding Financial Agreements

Prenuptial and binding financial agreements may be considered in will contest claims involving a spouse.

A prenuptial agreement is, at its core, a legal contract between partners, and the contract may remain binding if a) one party of the agreement is still alive, and b) it has not expired.

Due to the way prenuptial agreements are written, they will usually be the overriding ruling upon death and can have significant influence over the way assets are distributed.

Case Studies

Ibrahim v Nasr [2021] NSWSC 1321

This case involved a successful claim by a widow whose share was increased from $91,000 to $500,000.

Under the deceased’s 2015 Will, the widow was granted a 2-year life tenancy to the home that she and the deceased had resided for their entire 17-year marriage and thereafter 10% of the net proceeds of the sale was gifted to the widow and to each of the deceased’s nine children, being the widow’s stepchildren.

The widow brought proceeds for further provision from the estate. 

Front and centre in these proceedings was the conduct of several of the step-children towards the widow including allegations that she had stolen from and even attempted to murder the deceased, the installation of hidden cameras in the deceased’s bedroom to covertly record the widow’s care and treatment of the deceased, and “vile” Facebook posts made about the widow. 

In considering whether the deceased’s 2015 Will did not make adequate provision for the widow, the Court found that the widow cared for the deceased in sickness as well as in health over their 17 year marriage (contrary to the step-children’s allegations); that the relationship amounted to a substantial financial dependency; and applying Paton v Public Trustee (NSWSC, 8 December 1988, unreported) that “there is a basic minimum which the community regards as necessary for testator’s to provide for their spouses where their marriage has been of a medium to long duration. Those basic necessities include a secure roof over the remaining spouse’s head and at least a small capital sum”. 

The Court found in favour of the widow and made a family provision order for $500,000, being just over half of the net distributable estate after allowing for cost, to allow the spouse to improve her accommodation by renting or buying a  very modest apartment in Sydney), repay a loan, acquire basic domestic assets, and allow provision for medical expenses. 

Clarke v Clarke & Anor [2022] NSWSC 1721

This case involved a successful claim by a widow (aged 75) who secured an order allowing her to buy alternative accommodation. 

Under the deceased’s 2019 Will, he left his estate to his wife and two children from a previous marriage as tenants in common in equal shares.  The estate was small, and the net distributable estate was estimated at $443,000 after costs. 

The widow commenced proceedings for further provision from the estate for alternative accommodation to replace the accommodation that she had shared with the deceased for 16 years, which was in effect the estate’s primary asset and therefore needed to be sold. 

The Court was not persuaded that the widow should receive the property absolutely or all the proceeds of the sale of the property as the marriage was not where they raised children together; it was a second marriage; the property had not been jointly acquired (but rather gifted to the deceased before the relationship had commenced); and to do so would defeat the deceased’s testamentary wishes towards his children each of whom had a close and loving relationship with the deceased. 

However, the Court found that the deceased’s Will did not make adequate provision for the widow as it left her, then aged 75 and well into retirement age, whose only income was social security payments, without ‘proper’ accommodation after a 16-year marriage. 

The nature of the family provision order made by the Court was unique in the case. 

The Court ordered the widow to receive one third of the net proceeds of the sale of the property absolutely and in addition, the remaining two thirds of the balance of the net proceeds (comprising what was the children’s share) to be made available to the widow in the form of a secured loan to enable her to purchase alternative accommodation in her own name. The term of the loan was for the widow’s life or until she sold the property that was acquired for her. The widow was to pay interest but the interest on the loan was to capitalise. 

Need help with contesting a will in NSW?

Family relationships and marriages can be complicated, especially when money and property are involved. That is why it’s best to get in touch with a specialised wills and estate lawyer to help you protect your assets.

If you need assistance in contesting your spouse’s will, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.

Want to learn more?

Read more about who can contest a will here.

Read more about the cost of contesting a will here.

Read more about considering mediation when contesting a will here.

Stay tuned for an upcoming blog which explores if a former spouse can contest a will in NSW.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. 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 and circumstances.