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Can A Beneficiary Contest A Will In Sydney?

A beneficiary can contest a will in Sydney if they can prove that they meet the criteria for eligibility and have a right to greater provision. A suitable beneficiary is authorised under the Succession Act 2006 to make a Family Provision Claim to the Supreme Court of New South Wales. This article explains when and how a beneficiary can contest a will in Sydney.

When can a beneficiary contest a will in Sydney?

A beneficiary can only contest a will in Sydney if the testator was residing in the state before they died, or was the owner of property within the jurisdiction.

In addition, a beneficiary is only able to contest a will in Sydney within restricted time frames, as there are time limits associated with filing a claim. Firstly, a claimant should notify the executor of the estate as soon as possible, as the executor will pause distribution of the assets while the claim is assessed.  As an executor is at liberty to distribute bequests after six months, it is a lot more difficult for a beneficiary to contest a will after this point.

In Sydney, a beneficiary only has a year from the day of the testator’s death to file their claim with the Supreme Court. However, the court may choose to hear a late claim in special circumstances, if the beneficiary can justify the delay. For example, if the beneficiary was not aware of the testator’s death, or the terms of the will, they would not be aware of the need to file a claim. Only the court can give leave for an application to be made outside statutory limits: it is not sufficient for the executor of the estate to agree.

Which beneficiaries can contest a will in Sydney?

A beneficiary is eligible to contest a will in Sydney if they fall into one of the following categories:

  • A current spouse of the testator;
  • A former spouse of the testator;
  • A current de facto partner of the testator;
  • A child of the testator (including a legally adopted child);
  • A dependent member of the testator’s household;
  • A dependent grandchild of the testator; and
  • A person who was living with the testator in a close personal relationship.

Several of these categories of eligibility, such as “close personal relationship” and “de facto”, have been defined in state legislation and in case law.

For instance, in Sydney a beneficiary who was also a “de facto” partner of the deceased can contest the will. The Interpretation Act 1987 defines a de facto couple as partners who are not related or married, living together in a relationship. Heterosexual and same-sex de facto couples have identical rights under the law.

A beneficiary in a “close personal relationship” with the deceased can also contest a will in Sydney. This type of relationship is defined in the Succession Act 2006 as a connection between two adults who cohabitate but are not family members, married to each other or in a de facto relationship. The distinction between housemates and individuals in a close personal relationship is that in the latter, there is a provision of domestic support or personal care. It is also important that these personal services are not provided for financial reward or on behalf of a charitable organisation.

How can a beneficiary successfully contest a will in Sydney?

If a beneficiary is legally eligible to contest a will in Sydney, the next challenge is to consider whether the claimant have a realistic chance of success. The key question is whether the testator has already made adequate provision for the beneficiary in all of the circumstances of the case.

The court will assess a claim based on a number of factors, including the beneficiary’s health and age and particularly his or her current and future financial needs, weighed against all other competing claims. Other issues that may factor into the court’s deliberations include the status of the relationship between the deceased and the beneficiary, any support that the beneficiary has provided to the deceased prior to their death, and whether the deceased made promises that were not reflected in the bequest.

Costs of a beneficiary contesting a will in Sydney

In Sydney, the court decides which party pays the costs associated with a contested will case. Typically the deceased estate will reimburse a beneficiary the legal costs associated with contesting a will if the claim is successful. Alternatively, if the claim is denied, the court may decide to order that the unsuccessful claimant reimburse the estate for the legal costs incurred in defending the matter.

Before a beneficiary makes any decisions about making a claim, they should obtain a copy of the will and consult an experienced wills and estates solicitor. If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.

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