People often ask if they can challenge a loved one’s will because they believe it is not fair. In New South Wales there is a clear legal pathway called a family provision claim. This is different from saying the will is invalid. It asks the Court to change the distribution because the will did not make adequate provision for an eligible person’s proper maintenance, education and advancement in life.
The grounds for contesting a will in NSW focus on real need, real dependency and the real relationship with the deceased. The Court looks at your financial position, your connection to the deceased and your personal circumstances, including disability and future needs. These factors work together and are weighed against the size of the estate and the competing claims of others.
Below, you will learn who can bring a claim in NSW, the key grounds the Court considers, how time limits work, the evidence to prepare, and practical tips to assess your prospects before you take action.
Who can contest a will in NSW
Only an eligible person can bring a family provision claim in NSW under section 57 of the Succession Act 2006 (NSW). Eligible persons include:
- A spouse or a de facto partner at the time of death.
- A child of the deceased.
- A former spouse.
- A person who was, at any time, wholly or partly dependent on the deceased and either a grandchild or a member of the deceased’s household.
- A person in a close personal relationship with the deceased at the time of death.
Other categories:
A former spouse is eligible but will usually need to show additional factors that warrant the application. Stepchildren are not named as a separate category, but many stepchildren qualify because they were dependent and part of the deceased’s household. Grandchildren may apply if they can show the required dependency. Each category has its own nuances, so check your status against section 57 before you proceed.
The Grounds for Contesting a Will in NSW
Your aim is to show that the will failed to make adequate provision for your proper maintenance, education and advancement in life. The Court does not rewrite the will from scratch. It decides what is proper in the circumstances.
Financial Need and Dependency
Financial need is central to many family provision cases. The Court looks beyond income headlines and assesses real capacity to meet reasonable living costs.
Useful indicators include:
- Total income, assets and liabilities
- Rent or mortgage obligations, utilities and essential expenses
- Debts such as credit cards, personal loans and tax
- Current support being received, including maintenance or Centrelink payments
- Any dependency on the deceased during life, including regular financial support or housing
A clear and honest financial picture helps the Court measure whether the will left you without sufficient provision for your proper maintenance and advancement.
Relationship with the Deceased
Your relationship with the deceased matters. The Court considers:
- The nature and duration of the relationship
- Any obligations or responsibilities the deceased owed you
- Contributions you made to the deceased or the estate, including unpaid care
- Any explanations the deceased left for the will’s terms
Useful evidence can include texts, letters, photographs, caregiving records and statements from witnesses who observed the relationship.
Applicant Circumstances including Disability and Future Needs
Personal circumstances can shift the result. The Court looks at:
- Age, health and disability, including likely future treatment and care
- Family responsibilities, such as dependent children or a partner with health issues
- Employment prospects and stability of income
- The standard of living that is proper in the circumstances, not just bare subsistence
What the Court Considers
Section 60 of the Succession Act 2006 (NSW) lists the matters the Court may consider. Expect the Court to weigh:
- The relationship between you and the deceased, and any obligations owed
- Your financial resources and needs, including future needs
- Your age and any physical, intellectual or mental disability
- Contributions you made to the estate or to the deceased’s welfare
- The size and nature of the estate and competing claims
- Any evidence of the deceased’s reasons for making the will as they did
What “adequate provision” means in practice
“Adequate” depends on context. Consider these common outcomes:
- A long-term spouse or partner may need secure housing and income support for life
- An adult child in hardship may receive a lump sum to reduce debt or fund basic stability
- A self-supporting adult child with little need may receive no further provision, especially in a small estate with stronger competing claims
These outcomes flow from the statutory test of “proper maintenance, education and advancement in life,” not a fresh division of the estate.
Competing claims and size of the estate
Family provision is a balancing exercise. The Court will:
- Compare the strength of each claimant’s need
- Consider dependent children and spouses as often having stronger claims
- Fit any order to the size of the estate, which limits what is possible
Time Limits and Procedure
In NSW, you must file a family provision claim not later than 12 months after the date of death. The Court can allow a late claim only if sufficient cause is shown or if all parties consent. The safest step is to file within time.
Extensions are rare. They may be granted if, for example:
- You did not know about the death in time
- Negotiations caused delay and there is no prejudice to others
- There is another compelling reason amounting to sufficient cause
Each case turns on its facts and the onus is on the applicant.
Evidence to Prepare
A short preparation phase strengthens your position and helps resolve matters sooner. Aim to assemble the following:
Financial Documents
Provide a full and honest statement of position:
- Bank statements, payslips, tax returns and superannuation
- Loan statements, credit card balances and lease or mortgage details
- Regular expenses such as utilities, insurance and education costs
Clear evidence of financial need and dependency strengthens your claim.
Medical Evidence and Care Needs
If you have a disability or ongoing condition, gather:
- Recent medical reports and treatment plans
- Costings for medication, equipment and support workers
- Evidence of caring responsibilities for dependants and their needs
These materials link your applicant circumstances to real future needs.
Evidence of the Relationship
Show the real history of the relationship with the deceased:
- Periods of care or financial support
- Contributions to shared property or to the deceased’s welfare
- Texts, emails, letters and witness statements
This helps the Court apply the section 60 factors to your situation.
Risks, Costs and Outcomes
The Court can make orders such as a lump sum payment, a life interest or a right to reside in property or a structured provision to cover specific needs. Orders aim to fill a gap in support and achieve what is proper in the circumstances, not to equalise shares.
Costs and Settlement
- Costs usually follow the event: if you succeed, your reasonable costs are often paid from the estate; if you fail, you may face an adverse costs order
- Most matters settle: compulsory mediation and early negotiation can control risk and reduce delay
- Be realistic: outcomes depend on need, relationship, estate size and competing claims
Are you eligible to claim?
Understanding the grounds for contesting a will in NSW helps you make a confident decision. The law focuses on financial need and dependency, the relationship with the deceased, and your applicant circumstances including disability and future requirements. You must also be an eligible person and act within the 12-month time limit.
If you think you have a case, take these steps now:
- Confirm your eligibility under section 57
- Gather documents that prove need and dependency
- Record key details about your relationship with the deceased
- Get tailored advice on strategy, notional estate and realistic outcomes
Your situation is unique. Tailored advice under NSW succession law helps you evaluate your options, reduce risk and pursue a fair outcome. Contact M de Mestre Lawyers on 0401 513 190 or email [email protected] to discuss your circumstances and next steps.
Frequently Asked Questions (FAQs)
What is the difference between contesting a will and challenging its validity? Contesting a will in NSW usually means a family provision claim for more or different provision. Challenging validity alleges issues like lack of capacity or undue influence. The rules and evidence are different.
Who is an “eligible person” for a family provision claim? Eligible persons include a spouse or de facto partner, a child, a former spouse, and certain dependants such as a grandchild or household member who was partly or wholly dependent. A close personal relationship may also qualify.
What is the deadline to file a claim in NSW? You must file within 12 months of the date of death. The Court may allow late filing for sufficient cause or if all parties consent, but extensions are uncommon.
Does NSW consider “notional estate”? Yes. NSW can treat certain assets disposed of before death as part of the estate to satisfy an order, subject to strict limits in Part 3.3 and s 88. This can affect pre-death transfers and some superannuation outcomes.
What factors will the Court weigh when deciding my claim? The Court applies section 60 factors, including the relationship, obligations owed, your financial resources and needs, any disability, contributions to the estate or welfare of the deceased, the size of the estate and competing claims, plus any reasons the deceased gave for the will.
