Can a Will be Changed After Death in New South Wales?

As a Sydney law firm practising estate planning and administration, we are often asked: can a Will be changed after death under New South Wales succession law? 

The answer to this question has consequences for the beneficiaries and executors of deceased estates, as well as for any person who believes they have not been adequately provided for in a Will. Understanding the legal boundaries can help you navigate the intricacies of estate administration and potential family provision claims.

Can a Will be altered after death?

Generally-speaking, a Will cannot be changed after the death of the Will-maker. When a person dies, their Will becomes a legally binding document, and the executor is tasked with administering the deceased’s estate according to the provisions stated in the Will. This process, known as probate and estate administration, ensures that the deceased's assets are distributed exactly in accordance with their wishes.

Is there any exception to the rule?

Although a Will cannot be changed post-death, there is a notable exception under the Succession Act 2006 (NSW): the Variation of Wills. In NSW, beneficiaries can apply to the Supreme Court to have the terms of a Will varied if all beneficiaries who would be detrimentally affected by the change agree. This provision is typically used to manage unforeseen circumstances, reduce tax liabilities, or rectify errors or ambiguities in the Will.

However, this provision is not an opportunity to rewrite a Will entirely. The Court must be satisfied that all those impacted by the change, especially minors or incapacitated persons, have given their consent and that the modification is in their best interests.

What is a family provision claim?

For those who feel they have received inadequate provision in a Will, there is a recourse under NSW law: Family Provision Claims. These claims allow eligible persons - usually close relatives or dependents - to contest a Will if they can demonstrate that the deceased failed to make ‘adequate provision’ for their ‘proper maintenance, education, or advancement in life’. Family provision claims are not granted lightly; however, they may be successful if the applicant falls within a class of eligible persons and can substantiate their claim. 

Why is it important to seek legal advice?

The process of varying a Will or contesting a Will through a family provision claim can be complicated. Therefore, it is essential to seek legal advice to navigate these procedures and understand potential outcomes and implications. If you're grappling with questions about a Will, our experienced team in estate planning, probate, and family provision claims can guide you. We encourage you to contact The Estate Planning Centre for any concerns or queries related to deceased estates and New South Wales succession law.

By Jaime Dunn