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Is a no contest clause legally enforceable in NSW?

Is a “no contest” clause relevant in a Will?

A “No Contest” clause means that a person agrees they will not make a family provision claim against a deceased’s Estate. Regardless if they are entitled to. It’s a relevant clause in NSW law.

Under the NSW Succession Act eligible people are entitled to make a claim on a deceased Estate if they can show that:

  • They are included in the list of ‘eligible person’ in the Act; and
  • They were left without adequate provision for their proper maintenance, education or advancement in life.

A “No Contest” clause relinquishes this right, regardless if the person is an “eligible person”.

Who can include a “No Contest” clause in their Will?

Anyone can include a “No Contest” clause in their Will. However, for the “No Contest” clause to be effective it must meet the requirements set out in the Succession Act.

What are the requirements for a valid “No Contest” clause?

Under the Succession Act a “No Contest” clause will only have effect if it has been approved by the Court. Approval by the Court can be sought before, or after the death of the deceased and the Court has the power to approve a release to the whole, or any part of the deceased’s Estate.

When considering making an order for release the Court will take into account the following matters:

  • Whether, at the time any agreement to make the release was made, it was to the advantage, financially or otherwise, of the person to make the release.
  • Whether it was, at the time, prudent for the person to make the release.
  • Whether the terms on which the release was made were fair and reasonable.
  • Whether the person providing the release received independent legal advice on the effect of the release and given due consideration to that advice.

Need help?

If you are interested in how to make an effective “No Contest” clause, or how to ensure that a “No Contest” clause made in your favour is valid, then you need to seek expert legal advice. This advice will ensure that you meet all the requirements of the Succession Act successfully in relation to a release of rights, to make a family provision claim against a deceased Estate.

Please contact us to book an appointment.

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