Contesting a Will in NSW: Family Provision Claims Explained
If you believe a will does not provide for you fairly, or you suspect a will is invalid, New South Wales (NSW) law provides certain people the right to challenge it.
The following guide outlines the two main ways of contesting a will in NSW: bringing a family provision claim for a greater share of the estate or challenging the will’s validity outright. It explains who’s eligible, the grounds you can rely on, the strict time limit, and what the process looks like.
If a loved one has died without a valid will, or without an executor able to act, someone needs to be formally appointed by the Supreme Court of NSW to manage their estate. This is called applying for letters of administration, and it’s the NSW legal process that applies when there’s no valid grant of probate available. This guide explains what letters of administration are, when you need them, how to apply, what it costs, and how long the process typically takes.
How Can You Contest/Challenge a Will in NSW?
There are two distinct ways to contest a will in NSW, and it’s important not to confuse them:
- Family provision claim — where the will is valid, but you believe it does not leave you with adequate provision for your maintenance, education or advancement in life.
- Challenging the will’s validity — where you believe the will itself is not legally valid. A will may be because of undue influence, fraud, or the will-maker lacking testamentary capacity when they signed it.
Most disputes handled by succession solicitors fall into the first category — a family provision claim — which is the focus of most of this guide.
What is a Family Provision Claim?
A family provision claim is an application made to the court by an “eligible person” (see next section) under Chapter 3 of the Succession Act 2006 (NSW) wherein the applicant requests that the Court order provision or further provision to be made to them from the deceased’s estate. This provides a legal avenue to eligible individuals who believe they have not been provided with adequate provision under the deceased’s will.
⏱ The 12-Month Time Limit — Act Quickly
A family provision claim must be made within 12 months of the date of death. This is a strict deadline pursuant to the Succession Act 2006 (NSW) which the Court will only extend in extremely limited circumstances. We note further that delaying making your application may also lead to the estate already being distributed, thus making recovery far harder. Thus, if you believe you may have a claim, we urge you to speak to a solicitor as early as possible.
Who is Eligible to Bring a Family Provision Claim?
Section 57 of the Succession Act 2006 (NSW) outlines a list of “eligible persons” who may apply to the Court for an order for family provision in respect of the estate of a deceased person.
Such “eligible persons” include the following:-
- The spouse or de facto partner of the deceased at the time of their death;
- A child of the deceased;
- A former spouse of the deceased person;
- A grandchild of the deceased who was, at any particular time, wholly or partly dependent on the deceased and a member of the deceased’s household;
- A person with whom the deceased was living in a close personal relationship with at the time of the their death (we advise that the court is less likely to grant provision in these cases).
If you do not fall into any of the above categories, you will not have standing to bring a family provision claim.
- Grounds for Contesting a Will
Depending on which type of claim you’re pursuing, the grounds differ:
- Inadequate provision — the most common ground. You’re an eligible person, but the will (or the rules of intestacy) doesn’t leave you with proper maintenance and support given your needs, the size of the estate, and your relationship with the deceased.
- Lack of testamentary capacity — the will-maker didn’t understand what they were doing, the extent of their assets, or who might reasonably expect to benefit, when they made the will.
- Undue influence — the will-maker was pressured or coerced into making a will that doesn’t reflect their genuine wishes.
- Improper execution or fraud — the will wasn’t signed and witnessed correctly, or was procured through deception.
Grounds for Bringing a Family Provision Claim?
In order to successfully bring a Family Provision Claim, the applicant generally must demonstrate the following:-
- Lack of Adequate Provision
The individual bringing the claim must demonstrate that
- Entitlement Based on Personal Circumstances.
How Is the Family Provision Claim Assessed?
The Court weighs a broad range of factors, including:
- The nature and length of your relationship with the deceased.
- Your financial position, needs, and any disability or health issues.
- The size and nature of the estate.
- Any competing claims from other beneficiaries or eligible persons.
- Contributions you made to the deceased’s welfare, property, or estate during their lifetime.
What Can You Receive?
If your claim succeeds, the Court can order a lump sum, a transfer of specific property, ongoing periodic payments, or a combination — whatever it considers appropriate to meet your proper maintenance and support. There’s no fixed formula; outcomes depend heavily on the individual facts of the estate and your circumstances.
How Long Does It Take?
Simple, uncontested negotiations can sometimes resolve in a few months through informal negotiation or mediation. Contested claims that proceed to a defended hearing typically take considerably longer — often 12 months or more — given the Supreme Court’s caseload and the evidence involved. Most family provision claims in NSW are resolved through mediation before reaching a final hearing.
Cost of Contesting a Will
Costs vary significantly depending on whether the matter settles early or proceeds to a contested hearing. Many probate litigation firms offer a free initial case assessment, and some claims can be run on a no-win-no-fee or deferred-fee basis — ask about this when you get advice. In many successful family provision claims, a costs order or contribution from the estate can also help offset your legal fees. For general estate administration costs (as opposed to contested litigation), see our Probate in NSW guide.
How We Can Help
Contesting a will — or defending an estate against a claim — is emotionally difficult and legally complex. We can help you:
- Assess whether you’re an eligible person and whether you have reasonable prospects of success.
- Calculate and track the 12-month deadline so nothing is missed.
- Negotiate a settlement without the cost and stress of a full hearing, where possible.
- Represent you in Supreme Court proceedings if the matter can’t be resolved informally.
If you’re managing a related estate matter, our Letters of Administration NSW guide and full range of legal services may also be useful.
Frequently Asked Questions about Probate Law
Who can contest a will in NSW?
Only “eligible persons” under section 57 of the Succession Act 2006 (NSW) — broadly, spouses, de facto partners, former spouses, children, and certain dependants or household members.
How long do I have to contest a will in NSW?
Generally 12 months from the date of death. This is a strict deadline, and late claims are only allowed in limited circumstances.
What's the difference between contesting a will and a family provision claim?
Contesting validity argues the will itself isn’t legally valid (e.g. due to undue influence or lack of capacity). A family provision claim accepts the will is valid but argues it doesn’t adequately provide for you.
Can a stepchild contest a will in NSW?
Not automatically. A stepchild may be eligible if they were a dependent member of the deceased’s household, but they aren’t automatically an eligible person the way a biological or adopted child is.
Does contesting a will delay the whole estate?
It can. Executors are generally advised not to distribute the estate until the 12-month claim period has passed (or claims are resolved), to avoid personal liability.
Need clarity on probate law? Speak with a probate lawyer today.
Probate plays a crucial role in ensuring estates are administered lawfully and fairly. Whether dealing with probate with the will or navigating letters of administration, understanding when to seek legal help can make a significant difference.
If you are unsure about your obligations or next steps, speaking with experienced probate lawyers can help you move forward with clarity and confidence.
Dealing with a deceased estate can feel overwhelming, especially when letters of administration or probate with the will are required. Clear legal advice early can help avoid delays and costly mistakes.
📞 Call 1300 020 289 now to speak with an experienced probate lawyer or email probate@nswprobate.com.au