A person who receives less than they were expecting in a will or nothing at all may feel as though the will is unfair. In NSW, they may be able to contest the will by bringing a ‘family provision claim’.

Although family provision claims are not determined on fairness, a feeling of unfairness may indicate you are eligible to make a family provision claim.

Who Can Contest an Unfair Will

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

‘Eligible person’ includes the following:

• Spouse
• De facto partner
• Child
• Former spouse
• Wholly or partly dependent grandchild or member of the deceased’s household
• Someone with whom the deceased person was living in a close personal relationship with at the time of death.

In the case of a 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, the person must also satisfy a court that there are ‘factors which warrant the making of the application’, in other words, the person must satisfy a court that the claimant was someone who the deceased had an obligation to adequately provide for on death.

Can an Unfair Will be Overturned

In NSW, a person has a right to leave their estate to those they choose – this is referred to as ‘testamentary freedom’.

This means a person can exclude their spouse or child – if they choose. 

However, this testamentary freedom is subject to the Succession Act 2006 (NSW) which allows a court to effectively re-write the terms of the will if the beneficiary proves that the deceased’s will did not make adequate provision for their proper maintenance, education, and advancement in life.

What Constitutes a Will as Being Unfair

A feeling that a will is unfair is often subjective – based on the person’s background, beliefs, emotions, and experiences. What one person considers unfair may not be considered unfair by another.

An experienced wills and estate lawyer can help remove the emotions and personal feelings from the consideration and provide objective legal advice on the strength of a claim in relation to an unfair will.

Disinheriting a Spouse

A spouse who receives less than they were expecting from their spouse’s will, or nothing at all, may have a claim against the estate of their deceased spouse.

The strength of the surviving spouse’s claim will often depend on factors including the nature and extent of the estate, the age of the surviving spouse, the duration of the marriage, the financial resources and needs of the surviving spouse, any physical, intellectual, or mental disability of the surviving spouse, and any contributions by the surviving spouse to the acquisition, conservation, and improvement of their deceased spouse’s estate.

Disinheriting a De Facto Partner

As in the case of a spouse, a de facto partner is an eligible person under the Succession Act 2006 (NSW) and may have grounds to bring a claim against the deceased’s estate if the deceased’s will has not made adequate provision for their proper maintenance, education, and advancement in life.

The strength of a de facto partner’s claim will often depend on factors including the size and nature of the estate, the duration of the relationship, the financial resources and needs of the surviving partner, and any contributions by the surviving de facto partner to the acquisition, conservation, and improvement of the deceased’s estate.

Disinheriting a Child

Any child who receives less than they were expecting or who has been left out of a will entirely should seek legal advice.

Where a child has been completely disinherited, enquiries should be conducted to determine the parent’s motives and reasons. In some cases, suspicion may arise in relation to the circumstances surrounding the preparation of the will.

The strength of a child’s claim will depend on many factors including the child’s age, the nature of the relationship between the parent and child, the nature and extent of the estate, the child’s financial resources and financial needs, any physical, intellectual, or mental disability of the child, the extent of the child’s contribution to the acquisition, conservation, and improvement of the parent’s estate, and any evidence of the express wishes of the parent.

Disinheriting a Former Spouse

It is not uncommon for a former spouse to receive nothing in an ex-spouse’s will, particularly if the divorce was many decades earlier or one or both have remarried.

However, there are circumstances where a former spouse may be able to contest the will of their ex-spouse. Examples include where the divorce was only recent and the couple had not finalised family law settlement proceedings, or where the former spouse has fallen on hard times since the divorce.

There have even been cases where a meagre family law settlement many years or decades earlier have proved sufficient to contest a will.

Disinheriting Grandchildren or Members of the Household

A person does not have to provide for their grandchildren or members of their household in their will.

However, if that grandchild or the member of the household was at any time wholly or partly dependent on the deceased then they may be able to contest the will.

Disinheriting a Person with Whom You are Living in a Close Personal Relationship at the time of Death

One final category of eligible person is a person with whom a deceased person was living in a close personal relationship at the time of their death.

The strength of a person’s claim will depend on many factors and we recommend you contact an experienced wills and estate lawyer to discuss your circumstances.

Disproportionate Distribution of Assets

A beneficiary may feel a sense of unfairness where they receive a smaller share than their siblings or those in a similar category to them.

An example is where a parent had two children but split their estate 30% to one child and 70% to the other child. This appears unfair on its surface. However, there may be valid reasons why the parent chose to do this – it may be because the child who receives 30% is independently very wealthy or is estranged from that parent.

A disproportionate distribution of assets does not necessarily mean the person who receives less can contest the will, however, it often warrants closer consideration.

Conditional Gift or Bequest

Testamentary freedom also includes the ability to make gifts conditional upon some future event or occurrence – these are known as conditional bequests.

One form of conditional bequest is a condition precedent – that is, a condition that must be met before the beneficiary becomes entitled to a gift or bequest – such as attaining a certain age (i.e., 25 years of age) or attaining tertiary education.

The other form of conditional bequest is a condition subsequent – this is, a condition that revokes a gift or bequest if a specific event occurs – such as renouncing the familial religion.

Conditional gifts may be subject to overturning if the will is successfully contested.

How to Contest an Unfair Will in NSW 

If you believe you have been unfairly treated in a will in NSW, we recommend you consider the following steps:

1. Contact a lawyer and obtain advice on your eligibility to contest a will in NSW and timeframes.
2. Attempt to resolve the dispute through negotiations and mediation.
3. If negotiations and mediation don’t succeed – consider commencing formal court proceedings. This will involve the preparation of court documents and evidence.
4. Ensure you commence a claim within 12 months from the date of the deceased’s death.

Case Study: Spouse’s share increased from $100,000 to $500,000 after 17-year marriage 

In the case of Ibrahim v Nasr [2021] NSWSC 1321 a widow obtained a family provision order for $500,000 in the context of a 17-year marriage.

Under the deceased’s 2015 Will, the widow was granted a 2-year life tenancy to the home that she and the deceased lived in for their entire 17-year marriage and, thereafter 10% of the net proceeds of the sale of the property was gifted to the widow and to each of the deceased’s nine children (the widow’s stepchildren) – this equated to approximately $100,000 each.

The widow brought proceedings for further provision from the estate.

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 in applying Paton v Public Trustee (NSWSC, 8 December 1988, unreported) that “there is a basic minimum which the community regards as necessary for testators 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 made a family provision order in favour of the widow for $500,000, being just over half of the net distributable estate after allowing for costs, 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.

Get Legal Advice & Assistance with Contesting a Will 

When you are close to the events it can often be difficult to objectively assess whether a will is fair or unfair. 

If you believe you have been unfairly treated in a 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 time limit to contest a will here.

Read more about the role of a court in contesting a will here.

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.