How to Contest a Will in NSW?
Losing a loved one is an incredibly difficult time. Discovering that you have been unfairly provided for in their will can add significant stress and confusion. If you feel that a will does not make adequate provision for you, or that the will itself is invalid, you may be able to contest it.
In New South Wales, “contesting a will” generally falls into two categories:
- Challenging the Will’s Validity: This is a claim that the will itself is not legally valid. This may be due to a lack of testamentary capacity (the person was not of sound mind), they were under undue influence or pressure, or the will is a fraud.
- Making a Family Provision Claim: This is the most common type of claim. It does not argue the will is invalid, but rather that it fails to make “adequate provision” for an eligible person’s proper maintenance, education, or advancement in life.
This guide will focus on the second category, the Family Provision Claim, which is the legal path for those who believe they have been unfairly left out.
At Lawdocs, our experienced estate lawyers understand the sensitive nature of these disputes. We can provide a confidential assessment of your situation and guide you on the best path forward.
CRITICAL: The 12-Month Time Limit to Contest a Will in NSW
Before you do anything else, you must be aware of the strict time limit.
In NSW, you must file your application for a Family Provision Claim with the Supreme Court within 12 months of the deceased’s date of death.
The court can grant an extension of time, but only if you can provide a “sufficient cause” for the delay. This is not guaranteed, and the process is complex. Therefore, it is crucial to seek legal advice as soon as possible to ensure you do not lose your right to make a claim.
Who Can Contest a Will in NSW? The “Eligible Person” Test
You cannot contest a will simply because you feel the distribution is “unfair”. To make a Family Provision Claim in NSW, you must first be classified as an “Eligible Person” under Section 57 of the Succession Act 2006 (NSW).
The categories of eligible persons are:
This includes the deceased’s husband or wife at the time of death, as well as their de facto partner. A “de facto relationship” is legally defined and generally requires:
You lived together as a couple for at least two years.
You had a sexual relationship.
You had children together.
You shared finances or owned property jointly.
This includes biological children, adopted children, and “presumed children” as defined under the Status of Children Act 1996.
A former husband or wife of the deceased is also an eligible person.
This category has a two-part test. You must be:
A grandchild of the deceased, OR a person who was a member of the deceased’s household at any time; AND
You must have been, at some point, “wholly or partly dependent” on the deceased.
Simply receiving gifts from a grandparent does not automatically make you a dependant. The court will look for a genuine financial dependency.
This is a specific legal definition for a relationship between two adults (who may or may not be related) who live together, where one or both provides the other with domestic support and personal care without being paid for it (i.e., not on a commercial basis).
What Grounds Do You Need for a Family Provision Claim?
Once you are confirmed as an “Eligible Person,” the court does not simply rewrite the will to what is “fair.” Instead, it must determine if the deceased failed to make “adequate provision for the proper maintenance, education or advancement in life” of the claimant.
Under Section 60(2) of the Succession Act 2006, the court will consider a wide range of factors, including:
The relationship between you and the deceased.
Any obligations or responsibilities the deceased had to you.
Your financial needs, resources, and earning capacity.
The financial needs of any other beneficiaries or eligible persons.
The size of the deceased’s estate (including any “notional estate”).
Your age and any physical or mental disabilities.
Any contributions (financial or non-financial, such as caring for the deceased) you made to the estate or the deceased’s welfare.
Any provision the deceased made for you during their lifetime.
Evidence of the deceased’s testamentary intentions (e.g., statements they made).
The Process: How to Contest a Will Step-by-Step
While each case is unique, the general process for a Family Provision Claim is as follows:
Step 1: Initial Legal Consultation
This is the most important step. An estate lawyer will assess your case, confirm you are an “Eligible Person,” check you are within the time limit, and evaluate the strength of your claim.
Step 2: Gathering Evidence
If you have a strong claim, your lawyer will begin gathering evidence. This includes obtaining a copy of the will, identifying all estate assets and liabilities (including potential “notional estate”), and preparing detailed statements (affidavits) about your relationship, your contributions, and your financial needs.
Step 3: Negotiation and Mediation
Your lawyer will contact the executor of the will to notify them of your claim. The vast majority of will disputes in NSW are settled at mediation, which is a confidential, without-prejudice conference. This avoids the stress and cost of a full court hearing.
Step 4: Commencing Court Proceedings
If mediation fails, your lawyer will file a Summons in the Supreme Court of NSW to have the matter formally heard by a judge.
How Much Does It Cost to Contest a Will in NSW?
The cost of contesting a will varies greatly depending on the complexity of the case and how far it progresses.
If Settled Early: If the matter is settled through negotiation or mediation before a court hearing, costs can range from $5,000 to $30,000.
If it Goes to Court: A full court hearing can be very expensive, potentially costing $50,000 to $100,000 or more.
H3: Who Pays the Legal Costs? If your Family Provision Claim is successful, the court will usually order that your legal costs (or a large portion of them) be paid out of the deceased’s estate.
However, if your claim is unsuccessful, you may be ordered to pay your own legal costs and the estate’s legal costs. This is a significant risk that your lawyer will discuss with you.
How Lawdocs Can Help You
Contesting a will is a complex and emotional legal process. Our specialist estate lawyers are here to provide expert guidance with compassion and clarity.
We can help you by:
Providing a Confidential Assessment: We will honestly assess your eligibility and the strength of your claim.
Expertly Navigating the Law: We are experts in the
Succession Act 2006 (NSW)and will handle all evidence and court documents.Acting as Strong Negotiators: We are experienced in mediation and will fight to achieve the best possible settlement for you without the need for court.
Offering Peace of Mind: We can discuss flexible costs, including “No Win, No Fee” options, for eligible claims.
If you feel you have been unfairly treated in a will, contact our team today for a confidential consultation.
Frequently Asked Questions (FAQ)
Yes, an executor can contest a will if they are also an “Eligible Person” (e.g., they are also a spouse, child, or dependant). This creates a complex situation, and they should seek immediate legal advice.
This is a very common basis for a Family Provision Claim. You are still an “Eligible Person” (as a beneficiary), and the court’s job is to determine if the provision you did receive was “adequate” for your needs.
While you cannot completely stop someone from making a claim, you can dramatically reduce the risk. The best way is to seek proper legal advice when drafting your will. Your lawyer will help you identify all “Eligible Persons” and ensure you make “adequate provision” for them, documenting your reasons if you choose to leave someone less than they might expect.
NSW is unique in this regard. If a deceased person transfers assets (like a house) to someone else before their death to try and defeat a Family Provision Claim, the NSW court can “claw back” those assets and designate them as part of a “notional estate” to be distributed.
Been Unfairly Treated in a Will in NSW?
Contesting a will is a complex process, and the 12-month time limit is strict.
LawDocs provides expert legal advice on will disputes and Family Provision Claims.
✅ LawDocs: Your NSW Estate Dispute Experts
We offer a confidential assessment to help you understand your rights, your eligibility, and the strength of your claim.
📞 For a confidential consultation: Call 1300 270088
🌐 Visit: www.lawdocs.au
1300 27 00 88
Chinese