What Can I Do About An Unfair Will? (NSW)

When someone is left out of a will or receives an insufficient or unequal share of a deceased estate, it is not surprising for them to feel that the will is unfair. In that case, there are legal options that an eligible person can pursue under the Succession Act 2006 to contest the will. This article discusses examples of unfair wills and unreasonable provisions and explains how to dispute an unfair will in New South Wales.

What Is An Unfair Will In NSW?

In NSW, there is an accepted social and legal premise that a testator will, where possible within the scope of the deceased estate, leave adequate provision for a spouse (including a de facto spouse), as well as any minor children and vulnerable dependents. In addition to this social and legal expectation to provide for dependents, many grown children have a personal expectation that they will be remembered in their parent’s will, even if they are no longer financially dependent upon that parent.

How To Contest An Unfair Will In NSW

When a family member has been excluded from a will or feels that he or she was not provided for in a fair and adequate way, there are legal avenues to pursue. In NSW, a suitable person can contest an unfair will by making a Family Provision Claim.

Who Can Contest An Unfair Will In NSW?

A person is able to make a Family Provision Claim if they fit into one of the eligible categories listed in the Succession Act because they are the:

• Husband or wife of the deceased;
• De facto partner of the deceased (including a same-sex partner);
• Biological or adopted child of deceased;
• Former husband or wife of the deceased;
• Member of the deceased’s household or a grandchild of the deceased and at least partially dependent on the deceased; and a
• Person in a close personal relationship with the deceased before his or her death.

Unfair Will Example: Estranged Child

A parent who is estranged from his or her child may feel justified in making a will that excludes or leaves nominal provision to the estranged child. The parent may want to “reward” the loyalty and good behaviour of other children by leaving them the bulk of the deceased estate. Actually, the law in NSW gives more weight to the financial needs of the child than to the degree of parental closeness in a Family Provision case. An estranged child can therefore contest an unfair will even if they were not close at all with their deceased parent before they died.

Unfair Will Example: Distribution Should Be Fair, Not Equal

On the other hand, a parent may think that the fairest approach is to leave a deceased estate in scrupulously equal shares to all their children. Actually, this may be considered to be an unfair will if it shows no regard for the individual needs of the different children, one of whom may have greater need of financial help than another. For instance, if one of the deceased’s children has a disability that prevents them from holding full-time employment, this should be a consideration in the parent’s testamentary planning, and if it is not, the court may order an unequal distribution of the deceased estate to recognise the different needs of the beneficiaries.

Unfair Will Example: Contributions

A will might also be unfair if it gives no consideration to the contributions that someone made to either the deceased estate or the welfare of the deceased and family. If, for instance, one adult child helped their parent to grow the family business, they have a greater right to benefit from the sale of the business than another adult child who has never worked in the business.

Unfair Will Example: Conditional Bequest

A testator may choose to make a conditional bequest in his or her will so that a beneficiary only receives a bequest if they fulfil certain conditions. For instance, a conditional bequest may state that a granddaughter only receives a sum of money once she graduates from university. A beneficiary may consider that such a condition is unfair, but the court has upheld similar conditional bequests. Conversely, the court has overturned other unfair will clauses that are seen as a violation of public policy, such as making a bequest conditional upon a beneficiary divorcing their spouse.

Assessing A Claim

The Supreme Court of NSW will assess an applicant’s entitlement to further provision from an unfair will against a number of criteria, including:

• How close the applicant was to the deceased;
• The financial needs of the applicant relative to the needs of other claimants and beneficiaries;
• Any special relationship that the applicant had to the deceased; and
• If the deceased was obligated to provide for the applicant beyond any bequest included in the will.

An eligible person only has a limited time to contest an unfair will. In NSW, you can only make a Family Provision Claim in the 12 months after a testator’s death, so it is essential that you act promptly. Contact the contested wills team at Armstrong Legal on 1300 038 223 for help disputing an unfair will or assistance with legal advice on this or any other matter.