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MMS Briefs: Who can challenge a Will?

Eligible Persons

If you talk to someone at the pub or water cooler, you can be mistaken for thinking that Wills are worthless as “anyone can contest a Will.”

However, the law in NSW has strict categories in relation to who is eligible to challenge a Will. The categories are:

  • Spouses (wives, husbands and de factos;

  • Children (biological, adopted or IVF – but not stepchildren)

  • Former wives or husbands;

  • Someone who was financially dependent on the deceased at some time, and who was either: A grandchild; or a member of the deceased’s household at some time in their life.

  • A person who was living in a close personal relationship with the deceased at the time of their death.

De facto relationships are determined by looking at the totality of the relationship, but must involve living together as a couple, and usually a sexual relationship, financial interdependence or support, mutual commitment to life and public acknowledgement of the relationship.

Former spouses have to show that there are factors warranting the application – meaning that there needs to be some special circumstances whereby you would expect the deceased to have provided for them. This is very uncommon in practice.

Likewise, dependent grandchildren must show that they were something more akin to a child of the deceased. This could involve direct responsibility for their support or welfare, and continuing or substantial support financially.

Dependents in category d)ii) are someone who has lived with the person and been financially dependent on the deceased – not necessarily at the same time. Again, there must be factors warranting the application.

A “close personal relationship” means sharing accommodation, caring for one another (but not paid for it), domestic support and personal care.

“Dependent”

Buying someone a pair of socks each Christmas would not amount to dependency.

The Courts typically prefer regular, ongoing financial support over a period of months to be satisfied of financial dependency. Emotional support and pastoral care do not count when it comes to determining dependency.

“Adequate”