What If I Am Not Named In The Will? (NSW)

This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.

The fact that a person is not named in a will does not preclude them from eventually inheriting from the deceased estate in New South Wales. If the testator owed a moral duty to someone and failed to make fair provision for them in their will, then the courts can overrule the terms of the will. In New South Wales, a person who has been unfairly excluded from a will can make a Family Provision Claim to the Supreme Court of NSW. This article explains what a person should do when they are not named in the will and believe that they are entitled to fair provision from the deceased estate.

A testator in NSW can make a will that names anyone they wish as a beneficiary. By the same token, the testator can exclude anyone they want from their will. This is called testamentary freedom, and it is a fundamental principle of Australian succession law. However, certain people close to the deceased can contest the provisions of a will. The Supreme Court of NSW can hear a claim from someone not named in the will or a beneficiary who received an inadequate bequest. If the Supreme Court agrees that the will is unfair, it can order a redistribution of the estate to provide for the claimant.

In such a case, the Supreme Court will consider the merits of the case given the claimant’s relationship to the deceased, the moral duty of the testator to the claimant, and the claimant’s financial need compared to the needs of other beneficiaries and claimants.

Discovering You Are Not Named In The Will

One of the first tasks of an executor of an estate is to inform the will’s beneficiaries of their entitlement. However, the executor has no corresponding obligation to inform anyone who is not named in the will. Unfortunately, this can mean that a person may be unaware that they were disinherited until well after the deceased passes away.

After a loved one dies, a close family member or dependent should hear from the executor within a few weeks. If the person does not receive notification from the deceased estate, they should contact the executor and enquire about the will’s terms. Ideally, a person who intends to contest a will should request a copy of the will from the executor.

In NSW, the Probate and Administration Act 1898 mandates that a will becomes public only once it is admitted to probate. Before the will is probated, only certain people are eligible under the Succession Act 2006 to inspect the will. The people who are legally entitled to obtain a copy of the will before probate are:

• Anyone named in the current will;
• A beneficiary of an earlier will;
• The deceased’s spouse or de facto partner;
• The deceased’s child or grandchild;
• The deceased’s parent or guardian;
• Anyone entitled to inherit under NSW intestacy provisions;
• A parent or guardian of a minor person entitled to inherit from a will or under intestacy provisions;
• Anyone (including a creditor) who can claim against the deceased estate; and
• A person entrusted with power of attorney by the deceased or under the NSW Trustee and Guardian Act 2009.

Who Can Legally Complain If They Are Not Named In A Will?

Certain people are entitled to complain if they are excluded from a will. In New South Wales, the list is limited to the deceased’s spouse and de facto partner, ex-spouse, child, and someone in a close personal relationship with the deceased. There is also conditional eligibility for the deceased’s grandchild or housemate if they can establish dependence on the deceased. Anyone who is not an eligible person has no legal recourse if they are not named in the will.

Case Study

The Supreme Court of NSW heard a claim from a daughter who was not named in her mother’s will in Jodell v Woods [2017]. The deceased left an estate valued at $2 million to one of her daughters while not mentioning her other daughter in her will. The daughter had been estranged from her mother for some time, despite the daughter’s attempts to reconcile. The claimant’s financial circumstances were modest, and she sought provision from her mother’s estate to enable her to retire in relative comfort. The Supreme Court found that the claimant was likely not named in the will due to the ongoing estrangement. Still, this falling out was not sufficient reason for the deceased to ignore the claimant’s financial need for provision. The court ordered that the daughter receive $425,000 from her mother’s estate.

When someone is unfairly disinherited in NSW, they must act without delay to secure their rightful entitlement. The deadline to contest a will in NSW is 12 months after the testator’s death. Go To Court Lawyers has considerable experience with Family Provision Claims in New South Wales. Please contact the team today on 1300 038 223 if you were not named in a will.