Seeking Fairness for Family Members in the Last Will and Testament

When a loved one passes away, it is most often a very difficult period where high emotions can tear families apart. Sadly, much of the cause of this bitterness is the will that the deceased has left behind and the feeling amongst family members that it is unfair or does not reflect the true wishes of their loved one.

Though the will is a document that is unfettered by normal ethical concerns over how property and other assets are divided, there are certain cases where family members may have a case to contest the will. As much as this legal process may tear families even further apart, perhaps permanently, it allows for some balance at a time when emotions are running very high or even out of control.

Who Can Contest a Will?

In situations where emotions run high, the law offers a cool, balanced, and even hand in determining eligibility and outcomes. Contesting a will in NSW can only be done by those who are eligible, including:

  • wives, husbands, de facto partners, and life partners of the person at the time of their passing;
  • ex-wives and ex-husbands of the deceased;
  • children of the person who has died; and
  • a family member who was either fully or partially financially dependent on the deceased at the time of their passing.

The law is clear on who is eligible to bring a contestation against the will, and those who are outside of the family circle are typically ineligible. In large part, this is to ensure that it is only family who can contest and not simply anyone who feels that they should be a beneficiary of the will. To do otherwise would be to invite emotional chaos into the proceedings, and it is the intent of all law to represent a clear answer that is legally binding.

Is it Right to Make the Will an Unfettered Document?

Contesting a will is not an uncommon state of affairs, and this begs the question of why the will should reflect the true wishes of the person if the outcome is potentially so dramatic and combative for family members left behind. The alternative is to place restrictions on the will, but what form should they take? Is it right to demand that a person must divide all assets equally amongst family members? Is it right to restrict the person from leaving assets to charity or other third parties outside of family?

The central ethical problem here is that placing any restriction on the testator, or will writer, clearly restricts their true wishes. In this situation, the law cannot presume the mind of the testator and impose upon them a set of rules that may seem unfair. After all, should the testator not be allowed to exercise their wishes with dignity and without interference from the State and other legal entities?

The unfettered nature of the will may cause bitterness, angst, and combativeness amongst those family members left behind, but the alternative is far worse.