When can a dependant contest a Will?

Posted on January 8th, 2015

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By Robert Lindsay

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

Section 57 of the Succession Act lists the person(s) who are deemed “eligible person(s)” who can contest a Will.  Included in the section is:

i. “a person who was at any particular time wholly or partly dependent on the deceased person and …. who was a member of the household of which the deceased person was a member”.

We were recently involved in a case where an elderly lady died and prior to her death for many years she was assisted by her younger sister, who did her shopping, took her to appointments and performed cleaning duties for her.  The older sister had no children and was pre-deceased by her husband.  She had a Will which was many years old and made no mention of the younger sister.  The beneficiaries of the Will were nieces and nephews who had not visited the older sister for many years prior to her death, and certainly gave her no assistance.

The younger sister sought our advice, and after extensive enquiries we established that she in fact was an eligible person as she had lived with her older sister for approximately 1 year before she was married in about 1960.  Although the younger sister paid board, she was partly dependent on the elder sister who cooked for her and washed and ironed her clothes.  Proceedings were commenced and the case ultimately settled favourably for the younger sister.  However, her eligibility as a person entitled to commence proceedings was not challenged by the executors.  It was accepted that the younger sister was partly dependent on the older sister whilst she was a member of the household of her older sister.

If a person intends to contest a Will and does not fall into the “mainstream” categories of eligible persons, it is always important to carefully explore the historical relationship between the deceased and the proposed claimant as it can sometimes happen that a person is in fact an eligible person when at first glance he / she may not appear to be.  Attention to detail is very important.

Robert Lindsay is a Director at Mullane & Lindsay, and practises extensively in Commercial Law, Property Law and Wills & Estate Planning. If you require any assistance in this area please contact Robert Lindsay to arrange a consultation or contact our Newcastle office. 

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