You can contest a will if you’re considered an ‘eligible person’. While the exact definition varies from state to state, generally anyone who was a dependant of the deceased is considered an eligible person. This includes spouses and children of the deceased, as well as a number of other ‘dependants’. Below, we breakdown eligibility in more detail.
If you’re looking to contest a will, it’s wise to speak with a lawyer first. In a free consultation, we’ll determine your eligibility and outline all your options.
Contesting a will means you dispute how your loved one’s assets have been divided between their beneficiaries.
To contest a will, you must be an ‘eligible person’. Each state has a slightly different definition, so it’s important to consider your specific state requirements before starting a claim.
In NSW, your eligibility to contest a will depends on your relationship to the deceased. This is usually limited to:
A sibling, parent or grandchild may also have a claim if they were dependent on the deceased for financial support. In NSW, unlike many other states, a step-child who lived with their deceased step-parent can also qualify.
Likewise, a person who was living in a ‘close personal relationship’ with the deceased at the time of their death may be eligible. The person must have provided support for the deceased without acting on behalf of a charity or an expecting payment.
If you’re eligible to contest a will, you must begin your claim within 12 months from the date of death.
In Victoria, you are eligible to contest a will if you can prove that the deceased had a ‘moral duty’ to provide for you. Generally speaking, the deceased had a ‘moral duty’ to their:
A grandchild, registered carer, or other member of the household may qualify if they were financially dependent on the deceased. In addition, any child under 18, living with disability, or a full time student aged between 18–25 will be considered ‘financially dependant.
Any other adult child may contest a will if they can prove financial need and that they are unable to adequately provide for themselves.
While former spouses do not usually attract moral duty, they can contest a will if they had already commenced (or were about to commence) proceedings against the deceased in Family Court.
If you believe you’re eligible, you must commence your claim within 6 months from the date of death.
In Queensland, you may be eligible to contest a will if you have a recognised relationship to the deceased. This includes:
Under Queensland law, the deceased’s biological, adopted, unborn and step children all qualify as their ‘child’.
The term ‘dependant’ focuses primarily on any person under the age of 18 who relied on the deceased financially. This can include a parent of the deceased’s child or any person who was supported by the deceased at the time of their passing. The deceased’s parents may also qualify if they received substantial financial help from their child prior to their death.
If you’re entitled to contest a will, it’s vital to begin your claim within 6 months of the date of death.
In South Australia, you are eligible to contest a will if the deceased had an obligation to ‘adequately provide’ for you but their will fails to do so.
The following relationships generally attract this obligation:
Parents or siblings may also qualify if they cared for the deceased at the time of their passing.
Once you’re an established ‘eligible person’, you will then need to show that the deceased’s will fails to adequately provide for your future maintenance, education or advancement in life.
The Court will consider your relationship to the deceased and your personal financial circumstances. They will weigh this against the size of the estate and the personal circumstances of any other eligible people.
If you’re looking to contest a will, it’s important to start your claim within 6 months of the date of death.
In Western Australia, you may contest a will if you can demonstrate that you are an ‘eligible person’ who has been ‘left without adequate provision’. This means you’re claiming that, based on your relationship with the deceased, they should have left you some (or more) of their estate.
Under WA law, eligible people can include:
A grandchild may qualify if:
In both scenarios 2 and 3, the parent’s share of the grandparent’s estate passes directly to the grandchild.
A stepchild may be eligible to claim if:
Unlike other states, WA estate law does not include nieces or nephews. It does not matter if the niece or nephew shared a close relationship with their deceased aunt or uncle, or if they were financially dependant on them: they are not eligible to contest the will.
Once you’ve established eligibility, you’ll need to consider ‘adequate provision’. This is a notoriously difficult topic. The Court will consider not only your relationship with the deceased, but your relationship with all other eligible people. They’ll also look at the estate size and your own financial situation.
To successfully contest a will, you must also start your claim within 6 months from the date of death.
In Tasmania, you may contest a will if you are an eligible person and can show that the deceased’s will fails to make ‘adequate provision’ for your future maintenance and support. Eligible people include:
A significant relationship is a relationship between two adults, including same sex couples, who are not married or related.
If you believe you meet the criteria, you must commence your claim within 3 months from the date of death.
If you believe you’re eligible, it’s crucial to start your claim as soon as possible. Time limits vary state to state and contesting a will is often harder once assets are distributed.
The law surrounding estates is also notoriously complex, so it’s always a wise idea to get expert legal advice before beginning your claim. An experienced lawyer will determine your eligibility and ensure you receive your rightful inheritance.