Key Takeaways:
- Contesting a will in NSW usually involves a Family Provision Claim. This is a legal request for a share, or larger share, of the deceased Estate.
- Not everyone can make a claim. You must meet the criteria as an eligible person, as defined in the Succession Act (and below).
- There is a strict 12-month time limit from the date of death to make a claim. Extensions are only granted in special circumstances.
- The process can involve negotiation or court proceedings and is best handled with the help of an experienced estate lawyer.
- Early legal advice is crucial—delays can affect your ability to claim.
Contesting a will can be an emotional and complex legal process. It can be a necessary step if you believe a loved one’s will is unfair or does not make adequate provision for you. In this blog, we explain who can legally contest a will in NSW and the grounds for making a family provision claim.
What Does It Mean to Contest a Will?
Contesting a will typically refers to making a family provision claim under the Succession Act 2006 (NSW). This is an application made to the Supreme Court of NSW seeking a share (or a greater share) of the deceased person’s estate.
Contesting a will is different to challenging the validity of a will. This is a separate legal process where you believe that the will itself is not legally valid. This may be because the will has been made in circumstances of fraud or duress or in circumstances where the will maker did not have capacity.
Who Can Contest a Will in NSW?
Not everyone can contest a will. Only certain people, known as eligible persons, can make a family provision claim. According to section 57 of the Succession Act 2006 (NSW), eligible persons include:
- The deceased’s spouse or de facto partner at the time of death
- A former spouse
- A child of the deceased
- A person who was wholly or partly dependent on the deceased and was a member of the deceased’s household
- A grandchild who lived with the deceased and was dependent on the deceased
- A person in a close personal relationship with the deceased at the time of death (such as a live-in carer who was not paid)
Grounds for Contesting a Will
To be successful, an eligible person must show that the will does not make adequate provision for their proper maintenance, education or advancement in life.
The Court considers several factors when assessing a claim, including:
- The relationship between the claimant and the deceased
- The size and nature of the estate
- The financial needs and resources (including income and assets) of the claimant
- Any disabilities (physical, mental or intellectual) affecting the claimant
- The moral obligation the deceased may have had to provide for the claimant
- Any contributions the claimant made to the estate or to the welfare of the deceased
- The competing circumstances of the beneficiaries and any other claimants.
Time Limits for Contesting a Will
In NSW, you must file a family provision claim within 12 months from the date of death. In some cases, you can seek leave (or special permission to file outside of time. The Court will normally award this in exceptional circumstances.
Although 12 months can sound like a long time, it can pass remarkably quickly – especially when grieving or handling estate matters. Claimants should therefore obtain legal advice and obtain it early.
How to Contest a Will in NSW
Contesting a will involves several steps, including:
- Confirming your eligibility
- Gathering evidence (e.g. your financial situation, relationship history, etc.)
- Attempting mediation or negotiation (where appropriate)
- Filing a claim in the Supreme Court of NSW if necessary
Legal representation is strongly recommended, as the process can be complex and emotionally challenging.
Need Help Contesting a Will?
If you believe you’ve been unfairly left out of a will, or you’re unsure about your rights, we can help.
Contact us today to make an appointment with our Estates team. We will be able to step you through your family provision claim. We have years of experience helping people with contesting wills throughout the Newcastle, Lake Macquarie and Hunter region. Contact Us on (02) 4943 3988 to speak with one of our expert estate lawyers.
This blog was written by Senior Associate,
Liz McIntyre
Liz practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates, Wills disputes and Conveyancing
