Can My Distant Relatives Challenge My Will?

A Will is a legally binding document that allows an individual to determine how their assets and estate will be distributed.   The concept of “testamentary freedom” means that anyone who makes a Will can choose what they would like to happen to their money, their house, items of value such as jewellery and even any sentimental items after their death. 

There are some circumstances in which other interested parties may contest a Will if they believe it is unfair or inadequate.   Most importantly, however, there are strict criteria for anyone seeking to challenge the validity of a Will and if a person doesn’t fit into one of the categories of eligibility, their chances of successfully contesting the Will are remote.  In the majority of cases, a long-lost cousin or other distant relative will not meet the criteria!

What are the Eligibility Criteria for Contesting a Will?

Under the Succession Act 2006, certain categories of individuals have the right to contest a Will.  These include people who were ‘dependent’ on the deceased at the time of their death, including:

• a person who was the spouse of the deceased person at the time of the deceased person’s death;
• a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
• a child of the deceased person;
• a former spouse of the deceased person;
• a person:
  • who was, at any particular time, wholly or partly dependent on the deceased person, and
  • who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member;
• a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

In some instances, people who do not fit into these categories may be eligible to challenge the validity of a Will, however the process would be complex and costly.

What are the Grounds for Contesting a Will?

There are two main reasons to contest a Will in NSW

1. A person can challenge the validity of a Will.  This requires evidence and proof that the person making the Will either lacked the mental capacity to make a valid Will, or was under the undue influence of another party.  Alternatively, they would need to prove that the Will was fraudulent in some way or a forgery.
2. Someone who is an eligible person under the criteria above (for example a former spouse or grandchild) and believes that they have been unfairly treated or not received enough under the Will could make a Family Provision Claim with the Court.

How to Stop People Contesting Your Will

The single most important thing you can do to prevent anyone from contesting your Will, is to seek the advice of an experienced Wills and Estate lawyer when making it.  Understanding the laws and provisions set out in the Succession Act 2006 will help to ensure that your Will is not at risk of a challenge in the future and that your beneficiaries are not exposed to unnecessary conflict following your passing.

If you would like assistance with making a valid Will that minimises the potential of a challenge, contact the Wills and Estates team at Lamrocks Solicitors on ph:02 4731 5688.