Key Takeaways
- Only certain “eligible persons” can contest a Will in NSW under the Succession Act 2006 (NSW).
- A claim typically must be filed within 12 months of death unless the court grants an extension.
- Grounds include inadequate provision for an eligible person, or issues such as invalid execution, capacity or undue influence.
- Legal guidance and early action improve your chances of success and help navigate the complexities and costs.
When someone dies and leaves a Will, it might not always reflect what everyone expects, especially when close family or dependants believe the estate doesn’t adequately provide for them. In New South Wales, you do have rights to challenge a Will, but only under specific rules and within strict time frames.
Who is eligible to contest a Will?
Under Section 57 of the Succession Act 2006 (NSW), only certain categories of people can apply for what’s called a “family provision claim”. These include:
- a spouse of the deceased at time of death
- a de facto partner of the deceased
- a former spouse of the deceased
- a child of the deceased (including adopted)
- a person who was wholly or partly dependent on the deceased and was a member of the household
- a grandchild who was partly dependent on the deceased and a member of their household
- a person who was living in a close personal relationship with the deceased at their death
If you are not in one of these categories, you generally won’t have standing to initiate the claim.
What are the time limits?
You must act fast. In NSW you generally have 12 months from the date of death to file your claim for a family provision order. If you miss that deadline you may still apply, but you must show the court “sufficient cause” for the delay, and there’s no guarantee the court will allow it.
On what grounds can you contest a Will?
There are two main routes:
- A claim that the Will has not made adequate provision for you (family provision claim).
- A challenge to the validity of the Will itself (for example lack of testamentary capacity, undue influence, improper execution).
The court looks at many factors when considering adequacy of provision, including the relationship between plaintiff and deceased, the plaintiff’s financial position, the size and nature of the estate, any contributions the plaintiff made, the deceased’s testamentary intentions, and more (see Section 60 of the Act).
How the process works
- Seek legal advice early — this is complex and high-stakes.
- Attempt negotiation or mediation with the estate/beneficiaries (many cases settle this way).
- If no agreement can be reached, you lodge a court application in the Supreme Court of NSW.
- If successful, the court may order further provision from the estate (such as cash or specific assets) or vary distribution.
Practical considerations & risk
- Just because you feel you were “left out” or “didn’t get enough” doesn’t automatically mean you will succeed. The will need not be “fair” — it must make “adequate” provision.
- The size and complexity of the estate, the evidence of need, and what the deceased intended will all be critical.
- Engage a solicitor experienced in contested estates. Good early advice can target negotiation rather than full court battle.
Conclusion
If you believe you have been unfairly excluded or inadequately provided for in a deceased loved one’s estate, it’s vital to move quickly and get expert legal guidance. At Berryman Partners we have experience assisting clients across Newcastle, Lake Macquarie and the Hunter region with contested Wills and family provision claims under NSW law. Contact us today to find out whether you are eligible, what your rights are, and how we can help you pursue a just outcome.
This blog was written by Associate,
Jessica Benson
Jessica practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates and Will disputes
