Many people assume a Will always reflects a fair outcome. However, family circumstances, financial changes and personal relationships can sometimes result in an estate distribution that appears unfair.
This article explains what you can do if you believe a Will is unfair. It focuses on situations where the distribution may be unreasonable, rather than situations involving an invalid Will or being completely excluded from an estate.
If you are concerned about an unfair Will, a Wills lawyer can help you understand your options and whether you may have grounds for a Family Provision claim.
Why might a Will be considered unfair?
A Will may appear unfair for many reasons. Common examples include:
| Reason | Example |
|---|---|
| Outdated Will | The deceased person did not update their Will after major life events, such as divorce, a new relationship or changes to their family. |
| Unequal family contributions | A child provided significant care or financial support, while other family members did not contribute in the same way. |
| Family disputes | A person was removed from a Will after a disagreement, but the deceased later reconciled without updating the document. |
| Influence or favouritism | The deceased left a larger share of the estate to one person despite other family members having competing needs. |
Regardless of the reason, an unfair Will can create uncertainty and conflict between beneficiaries. After someone dies, their reasons for making decisions may no longer be available to explain their intentions.
Can you challenge an unfair Will in NSW?
People generally have the right to decide how their assets are distributed after death. This principle is known as testamentary freedom.
However, the Court can adjust an estate distribution in certain circumstances. If an eligible person did not receive adequate provision for their proper maintenance and support, they may make a Family Provision claim.
A Family Provision claim does not challenge whether the Will itself is valid. Instead, it asks the Court to consider whether the deceased failed to make adequate provision for someone who was entitled to support.
How does a Family Provision claim work?
To make a Family Provision claim, you generally need to satisfy two requirements:
| Requirement | What it means |
|---|---|
| Eligibility | You must fall within the category of eligible people under the relevant legislation. |
| Insufficient provision | The deceased person’s estate must have failed to provide adequately for your maintenance and support. |
If these requirements are met, the Court can decide whether the estate should be adjusted. The Court considers the size of the estate, the needs of the claimant and the circumstances of other beneficiaries.
Who can make a Family Provision claim in NSW?
The rules differ between states and territories. In NSW, eligible people may include:
- a spouse or former spouse;
- a de facto partner;
- a child of the deceased;
- a person who was financially dependent on the deceased;
- a person who lived with the deceased; or
- a person who had a close personal relationship with the deceased.
Step-children, grandchildren, parents and siblings may also qualify in certain circumstances.
A Wills lawyer can assess whether you meet the eligibility requirements and advise you about applicable time limits.
In NSW, Family Provision claims generally need to be filed within 12 months from the date of death.
How do you prove a Will is unfair?
The Court considers a range of factors when deciding whether an estate distribution is inadequate.
These factors may include:
- the deceased person’s obligations to the claimant;
- the claimant’s financial circumstances;
- the financial needs of other beneficiaries;
- the relationship between the deceased and the claimant;
- the claimant’s age, health and personal circumstances;
- contributions made by the claimant to the deceased or their property; and
- the deceased person’s intentions and reasons for making the Will.
The Court looks at both financial and non-financial contributions. For example, caring for a parent during their final years may be relevant when assessing whether further provision should be made.
Can an unfair Will be resolved without going to Court?
Many Family Provision disputes resolve before a hearing.
Mediation is usually required before a claim proceeds to Court. Reaching an agreement can help preserve estate assets and reduce legal costs.
The executor’s role is to protect the estate assets. A negotiated settlement may provide a practical outcome for all parties involved.
Can beneficiaries change an unfair Will?
In some circumstances, beneficiaries may enter into a Deed of Family Arrangement.
This document allows parties to agree on a different distribution of estate assets from the one set out in the Will.
A Deed of Family Arrangement may be suitable where:
- all beneficiaries agree to the proposed changes;
- everyone involved has legal capacity; and
- the parties obtain independent legal advice.
Legal advice is important because these arrangements may involve taxation and stamp duty consequences. The agreement should also protect the executor from future claims or liability.
Frequently asked questions about unfair Wills
Can I challenge a Will if I was left out?
You may be able to make a Family Provision claim if you are an eligible person and the deceased failed to make adequate provision for you.
Does an unfair Will mean the Will is invalid?
No. A Will can be valid but still result in an unfair distribution. A Family Provision claim addresses whether adequate provision was made.
How long do I have to challenge a Will in NSW?
In NSW, Family Provision claims generally must be made within 12 months from the date of death.
Conclusion: What to do if you believe a Will is unfair
If you believe a deceased person’s Will does not provide fairly for you, you may have options through a Family Provision claim.
A lawyer can help assess your eligibility, explain the process and assist with negotiating a resolution.
To reduce the risk of future Will disputes, people should regularly review their estate plans and update their documents when circumstances change.
This information is general only and you should obtain professional advice relevant to your circumstances.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].