Who Can Contest A Will?

The legal question is who is "eligible" to bring an application for provision.

The Succession Legislation

This legislation effectively creates new rights that do not arise under the Will (or intestacy provisions) which would have otherwise determined the rights.
For deaths after 1 March 2009 see the Succession Act 2006 (“SA”).
For deaths before 1 March 2009 see the Family Provision Act 1982.
Under the Succession Legislation the key provision is s 57 (1).
Note that parents, siblings and step children are not expressly included as eligible to contest a will but may potentially fall into categories s 57(1)(e) or (f) (above).
Arguably, and based on its reading alone, section 60 (2) (a) to (p) can be used to establish whether someone is an “eligible person” s 60 (1).

Who are the Eligible Applicants?

One of the first and foremost questions to be answered is whether someone is an eligible person for the purposes of contesting a will under the Succession Legislation. Other important questions relate to the time limits for making a claim and whether an eligible person has not been adequately provided for. Essentially, an eligible person usually includes:-

(a) Current spouse (including same-sex partner) of deceased;

(b) Current de-facto [see: 21C of Interpretation Act] of deceased;

(d) A former wife/husband of deceased;

(e) (i) Someone who was dependent (wholly/partly) on deceased and (ii) also a grandchild or a member of household (at any time);

(f) A person with whom deceased lived in a close personal relationship at the time of death

Note: (d) to (f) (above) must establish additional criteria s 59 (1)(b)].

To find out if you are an eligible person to contest a will please contact us for more information about your rights in NSW if you are based in Sydney.