Lawyers Authority

How to Contest a Will of a Loved One

If a loved one you’re close to has passed away, it can be a shock to be left out of their will. There are many things you can do if you’ve been left out of a will by a parent, especially if you were always in contact and had a good relationship with them. Here are some of the ways to contest the will of a loved one.

How to Contest Wills

If you’re the son or daughter of a deceased person, it can be difficult for them to disinherit you. If you’re a grandchild, they do not necessarily need to name you in their will, unless you’ve lived with them and they were supporting you. Under the Family Provision Act in NSW, only “eligible persons” are able to contest the contents of a will. Eligible persons include:

  • Surviving spouses
  • Ex-spouses
  • De Facto Partners
  • Children (including adopted children)
  • Step-children, but only if they were dependent on the deceased for support.
  • Grandchild if they were wholly or partially dependent on the deceased for
  • Anyone living with and had a close relationship to the deceased.

Reasons to Contest Wills

There are certain reasons wills can be contested, including being left out of the will altogether by the deceased. Some of the reasons for contesting a will include:

  • The financial needs of an eligible person.
  • Claiming the will was “grossly unfair”.
  • The deceased not having the mental capacity to write a will.
  • The existence of dependents who were supported wholly or partially by the deceased financially.
  • Being influenced by the Executor

If you are an eligible person and have the grounds for contesting a will, you need to hire an attorney with experience in handling family provision claims. These claims can be complicated, especially if there are parties objecting to your eligibility to contest the will. However, if you have proof for your claim or had some sort of relationship with the deceased, then you may be able to win your claim.

Claim Limitations

To contest a will, the claim needs to be filed within 12 months of the date of death. The only way to get this limitation extended is if you were not aware the deceased had died right away. However, once you are aware of their death, you should contact an attorney right away to find out about the existence of a will and contest it based on one of the above grounds if necessary.

An attorney will file the claim for you, then the matter will be taken up by the courts. They will determine if you’re an eligible person, look at your finances if you’re contesting based on financial need, and determine how much provision from the will you’re to receive if your claim is successful. There is no set amount for a provision, but the courts will determine it based on several other factors.

If you know you are going to contest the will of a deceased loved one, you need to contact an attorney as soon as possible. They can then prepare and file your claim right away.



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