What contesting a will means in NSW
When people ask how to contest a will, they usually mean one of two different things, and the difference matters. The most common is a family provision claim: asking the Supreme Court of NSW for a share, or a larger share, of an estate because adequate provision was not made for you. The other is challenging whether the will is valid at all, on grounds such as the will-maker lacking the capacity to make it, being pressured into it, or the will not being signed properly.
This article is about the first, the family provision claim, because that is what most enquiries are about. These claims are governed by the Succession Act 2006 (NSW), which sets out who is allowed to make one and how the Court decides it. If you think you have been left out unfairly, or a loved one has, the first step is knowing whether you are eligible and how long you have. Our estate administration services cover this area, and getting advice early is the single most useful thing you can do.
Who can contest a will in NSW
Not everyone can make a family provision claim. The Succession Act limits it to people the law calls eligible persons. In broad terms, that includes:
A husband or wife of the deceased at the time of death.A de facto partner, including a same-sex partner.A child of the deceased, including an adult child.A former husband or wife.A grandchild or a member of the deceased’s household who was wholly or partly dependent on them.A person who was in a close personal relationship with the deceased when they died.
Being eligible is only the starting point. The Court then looks at whether adequate provision was actually made for your maintenance, education or advancement in life, so an eligible person is not guaranteed an outcome. Our estate team can tell you honestly, early on, whether a claim is worth pursuing.
The deadline for contesting a will
Timing is where many people come unstuck. In New South Wales, a family provision claim must be filed with the Court within 12 months of the date of death. That period runs from the death itself, not from the reading of the will or the grant of probate, so it can pass sooner than families expect while an estate is still being sorted out.
The Court can extend the time in some circumstances, but only where there is a good reason for the delay, and there is no guarantee it will. The safe approach is to treat 12 months as a firm deadline and get advice well before it, ideally as soon as you know you may have been left without adequate provision. Leaving it late narrows your options and can add cost.
How a family provision claim works
A family provision claim does not always end in a courtroom. Once a claim is on foot, the Court encourages the parties to resolve it, and most claims settle at a mediation rather than a hearing. That is usually faster, less costly and less stressful for the family than a full trial.
When the Court does decide a claim, it weighs a range of things: the size of the estate, your financial position and needs, your relationship with the deceased, and any competing claims from others. Because every estate and family is different, the outcome turns on the facts. Keeping your own affairs clear helps your family avoid all of this, which is one reason our guide to keeping your estate plan current is worth a read.
FAQ
How much does it cost to contest a will?It depends on whether the claim settles early at mediation or runs to a hearing. We explain the likely costs up front and the options for funding a claim before you commit.
Can I contest a will without going to court?Often, yes. A claim is usually lodged with the Court, but most are resolved through negotiation or mediation without a full hearing.
What if the 12 months has already passed?The Court can extend time in limited cases where there is a proper explanation for the delay, but it is not automatic. Get advice quickly, because the sooner you act the better your position.
If you are thinking about a claim, or you are an executor facing one, speak to a local estate lawyer early so you do not lose the option to the deadline. Call 02 4626 5552 or book a consultation at our Picton or Oran Park office.
This article is general information about the law in New South Wales and is not legal advice. For advice on your own situation, please speak with a lawyer.
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