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Contesting Wills

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5 Steps to Contesting a Will

1. Check that you are eligible to apply

To make a claim for family provision you must be a person who was in a certain relationship with the deceased. The most immediately obvious claimants are spouses, de facto spouses and children.

The laws differ slightly in each state but, generally speaking, the law will protect a person to whom the deceased owed a moral responsibility.    

This means each situation is open to interpretation and depends on its unique circumstances. Categories of eligible people broaden beyond close relatives to grandchildren who were also dependent upon the deceased or lived in the same household as the deceased and even former partners of the deceased, in certain circumstances.

Step 1 - Are You Eligible to Contest a Will?

2. Check that you are within the time limit

Limitation periods apply in will dispute claims.  An application needs to be filed within the following timeframes:

  • Queensland – 9 months from the date of death
  • New South Wales - 12 months from the date of death
  • Victoria – within 6 months of the date of probate being granted

Step 2 - Are You Within the Limitation Period?

3. Consider the size and nature of the estate

When determining if you can effectively challenge a will you need to acquire general information about what is in the estate.  This helps determine whether you are able to compete with other beneficiaries and ultimately whether your will dispute claim will be successful.

Step 3 - What is in the Estate?

4. Determine you can establish a need for provision

You must be able to show that you ‘need’ the money and this need can be relative to that of your competitors.  Generally speaking a person with a mortgage or some other debt will have 'need', but this is to be considered in light of the size of the estate and its competitors.

Step 4 - Can You Show Need for Provision?

5. Assess your competition

Who are the other beneficiaries named in the will?  What relationship did they have with the deceased? How does this information affect your will dispute claim?

Step 5 - Who Are Your Competitors?

For information regarding the procedural steps that need to be taken to contest a will in NSW see: Contesting a Will in NSW: What to Expect