Do you have to be a blood relative to contest a will?

PUBLISHED 26 Jan 2020

Wills can be a point of contention for some families following the passing of a relative, particularly when certain members feel they have been treated unfairly. For those who have no blood relation, the legal process for contesting the provisions of a deceased relative’s will in New South Wales may be even more difficult, depending on their relationship.

A non-blood relative might challenge a will based on an argument that they are entitled to more of the estate than what they are initially specified to receive. A dispute can also be brought about if relatives believe that they were short-changed because the deceased was unduly influenced by others, or not competent enough to fully comprehend and prepare a will before signing one. The legal processes for contesting wills based on these grounds and others (such as intestate scenarios, in which individuals pass away without having signed a will) are laid out in the Succession Act 2006, and have been updated to reflect passage of the 2009 Succession Amendment Act.

When is a non-blood relative eligible to challenge a will?

A specific set of legal criteria determines who is eligible to dispute wills of the deceased, and it can include non-blood-related family members such as step-relatives. (Full- and half-blood relatives, however, are treated equally.)

Individuals who are not blood-related to a deceased individual may challenge a will if they:

  • Were legally espoused to the deceased
  • Were in a de facto marriage at the time the deceased passed away
  • Are a stepchild (including step-grandchildren) or were adopted by the decedent (this also applies to original and step-family offspring disputes)
  • Were formerly married to the deceased
  • Were in a “close personal relationship” (living together in a supportive environment) with the decedent at the time of their passing

How to contest a will
Contesting a will requires a fair amount of due diligence – a process that can be facilitated through the services of probate attorneys at Gerard Malouf & Partners. First, remember that the deadline to challenge a will in NSW is 12 months. Additionally, to bring a successful dispute claim, the non-relative must prove they had a personal relationship with the deceased and are owed a currently unfulfilled “moral dependence.” (Responsibility for any associated legal costs are determined on a case-by-case basis depending on the outcome of the dispute.)

Gerard Malouf & Partners’ experienced legal team can help you obtain the most favorable decision. Contact us today to find out more, or inquire about a consultation.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.