Only an ‘eligible person’ can contest a will in NSW.

‘Eligible person’ is defined in section 57 of the Succession Act 2006 (NSW) and includes a spouse, de facto spouse, child, former spouse, a wholly or partly dependant 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 can contest a will in NSW.

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 show that there are ‘factors which warrant the making of the application’ to constitute an eligible person. In other words, there is an additional threshold that applies to these applicants. 

Once a person is found to be an ‘eligible person,’ the second step is to consider whether adequate provision for the maintenance, education, or advancement in life of the eligible person has not been made by the will of the deceased person. 

Spouse of the Deceased

A wife or husband of the deceased person at the date of the deceased’s death is eligible to seek a family provision order.

This includes both heterosexual and same-sex couples. 

A married person remains a husband or wife in spite of separation. However, in some circumstances, where for instance there has been a separation and a property settlement under the Family Law Act 1975 (Cth) the court may consider a claim in the same light as a ‘former spouse.’ 

A married person remains a husband or wife until there has been a decree absolute. 

De Facto Partner

A de facto partner is eligible to seek a family provision order. 

A person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 (NSW) or the person is in a ‘de facto relationship’ with the other person. 

The definition of a ‘de facto relationship’ is contained in section 21C of the Interpretation Act 1987 (NSW) and includes two people who have a relationship as a couple living together and they are not married to one another or related by family. 

Unlike a marriage or a registered relationship, a ‘de facto relationship’ is not established by any form of registration but instead must be proved as a question of fact based upon the actions and intentions of the parties and includes consideration of any of the following matters that are relevant in a particular case:

(a)  the duration of the relationship;

(b)  the nature and extent of their common residence;

(c)  whether a sexual relationship exists;

(d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e)  the ownership, use and acquisition of property;

(f)  the degree of mutual commitment to a shared life;

(g)  the care and support of children;

(h)  the performance of household duties;

(i)  the reputation and public aspects of the relationship.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. 

A Child of the Deceased

A child of the deceased is eligible to seek a family provision order. 

The definition of child in section 3(2) of the Succession Act 2006 (NSW) is limited and provides that a reference to a child in the Succession Act 2006 (NSW) includes a child who is born after the deceased person’s death after a person of gestation in the uterus that commenced before the person’s death and survives the person for at least 30 days after birth. 

Otherwise whether or not one person may be regarded as the child of another is a question that must be determined by reference to other legislation.

Where the deceased was in a de facto relationship or a domestic relationship, the definition of child includes ex nuptial children, adopted children, children presumed by law to be children of the deceased, and children who the deceased had parental responsibility within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

The definition of child does not extend to a child who is born by IVF many years after the deceased’s death, nor in some cases to foster children, but a foster child may be an eligible person under section 57(1)(e) as a person dependent upon and a member of the deceased’s household. 

Former Spouse of the Deceased

A former spouse of the deceased is an eligible person under section 57(1)(d) of the Succession Act 2006 (NSW) but section 59(1)(b) requires a court to be satisfied that there are ‘factors warranting the making of an application’.

A former husband or wife refers to a person to who the deceased was married but was divorced from at the time of the deceased’s death. A married person remains a husband or wife until there has been a decree absolute. 

Grandchildren

A person who is a grandchild of the deceased is an eligible person under section 57(1)(e) of the Succession Act 2006 (NSW) if they were, at any particular time, wholly or partly dependent on the deceased person, and can satisfy a court that there are ‘factors warranting the making of an application’.

Dependency can include financial and/or emotional dependency. 

Member of the Deceased’s Household

A person who was at that time, or at any other time, a member of the household of which the deceased person was a member is an eligible person under section 57(1)(e) of the Succession Act 2006 (NSW) if they were, at any particular time, wholly or partly dependent on the deceased person, and can satisfy a court that there are ‘factors warranting the making of an application.’

The persons who typically falls into this category are step-children and former de facto partners.

Dependency can include financial and/or emotional dependency.

Close Personal Relationship

A person with whom the deceased was living in a ‘close personal relationship’ at the time of the deceased person’s death is an eligible person if they can satisfy a court that there are ‘factors warranting the making of an application.’

The term ‘close personal relationship’ is defined in section 3(3) of the Succession Act 2006 (NSW) as a relationship “…(other than a marriage or a de facto relationship) 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.”

The relationship requires the provision of both domestic support and personal care and the existence of only one is insufficient. 

There is no requirement that the relationship be physical or sexual. 

Who Is Not Eligible To Contest a Will in NSW?

A person who does not fall within the definition of ‘eligible persons’ in section 57 of the Succession Act 2006 (NSW) is not eligible to contest a will in NSW.

Although it is worthwhile noting that a person who is not an ‘eligible person’ for the purposes of a family provision claim under section 59 of the Succession Act 2006 (NSW) may still be eligible to challenge a will on grounds including undue influence, fraud, suspicious circumstances and/or the testator’s lack of testamentary capacity.

If you have a question about whether you are an eligible person to contest 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 how to contest a will here.

Read more about considering mediation when 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.