Introduction
Contesting a Will can be one of the most emotionally charged legal issues a family faces after a loved one’s death. When someone feels they’ve been unfairly left out of a Will, or treated unequally in the distribution of an estate, they may decide to take legal action.
In New South Wales (NSW), contesting a Will is legally possible under certain conditions—but it’s not as simple as just disagreeing with the contents. Specific laws govern who can challenge a Will, on what grounds, and within what timeframe.
This comprehensive guide will explain everything you need to know about contesting a Will in NSW—from legal eligibility and time limits to how the courts decide family provision claims. We’ll also explore how an experienced estate litigation lawyer can help you navigate this complex process.
What Does Contesting a Will Mean?
Contesting a Will refers to the legal process of challenging the validity of a Will or seeking a different distribution of assets under the Succession Act 2006 (NSW). It usually involves filing a Family Provision Claim, where an eligible person asks the court for a larger share of the estate.
This is different from challenging the validity of the Will, which may involve claims of fraud, forgery, or undue influence.
Why Do People Contest Wills?
There are several reasons why someone might contest a Will in NSW:
They have been left out of the Will entirely
They received a smaller share than they believe is fair
The deceased had a moral obligation to provide for them
They depended financially on the deceased
They suspect undue influence, coercion, or lack of capacity
Who Can Contest a Will in NSW?
Not everyone has the right to contest a Will. The Succession Act 2006 (NSW) limits eligibility to certain “eligible persons”, which include:
The spouse (including de facto partners) at the time of death
Former spouses
Children of the deceased (including adopted children)
Stepchildren or grandchildren who were dependent on the deceased
Anyone who lived in a close personal relationship with the deceased
Persons who were financially dependent on the deceased
These individuals must demonstrate that they have been left without adequate provision for their proper maintenance, education, or advancement in life.
Legal Grounds for Contesting a Will
There are two main ways a Will can be contested in NSW:
1. Family Provision Claim
A person believes they should have received more from the estate. The court can change how the estate is distributed to provide “adequate provision” for them.
2. Challenging the Validity of the Will
This involves disputing whether the Will is legally valid. Grounds may include:
Lack of testamentary capacity (mental capacity to make a Will)
Undue influence or coercion
Forgery or fraud
Improper execution (e.g. not signed or witnessed correctly)
Revocation by a more recent Will
These two pathways are distinct and require different legal strategies.
Time Limits for Contesting a Will in NSW
In NSW, strict time limits apply.
A Family Provision Claim must generally be filed within 12 months of the date of death.
The court can grant an extension in exceptional circumstances, but it’s risky to rely on this.
If you’re considering contesting a Will, it’s critical to get legal advice as soon as possible.
How Do You Contest a Will in NSW?
Here’s an overview of the typical steps:
Step 1: Seek Legal Advice
An experienced estate litigation solicitor will assess whether you have a valid claim, the likely outcome, and the risks involved.
Step 2: Attempt Mediation or Negotiation
Most estate disputes are settled through mediation without going to court. Your lawyer will try to reach a fair agreement with the executor or other beneficiaries.
Step 3: File a Claim with the Supreme Court of NSW
If no agreement is reached, your lawyer will file a Family Provision Claim in the NSW Supreme Court.
Step 4: Prepare Evidence
You’ll need to show:
Your financial needs
Your relationship with the deceased
The size and nature of the estate
Contributions you made to the deceased’s welfare or assets
Step 5: Court Hearing (if needed)
If the matter is not resolved at mediation, it proceeds to a court hearing. The judge will consider all evidence and decide whether to adjust the distribution of the estate.
What Does the Court Consider When Assessing a Claim?
Under section 60 of the Succession Act 2006, the court looks at multiple factors, including:
Nature of your relationship with the deceased
Financial and personal needs
Size and value of the estate
Any contributions made to the estate
Any promises or obligations
Competing claims from other beneficiaries
There is no automatic right to a share of the estate. The court’s goal is to ensure fairness and adequate provision, not equal distribution.
Can a Will Be Contested if the Estate is Small?
Yes, but keep in mind:
If the estate is too small, there may be insufficient assets to justify legal action
Legal costs may exceed potential benefit, unless there’s evidence of significant wrongdoing or unfairness
A solicitor will assess whether your claim is financially worthwhile.
Who Pays the Legal Costs When Contesting a Will?
Costs are usually paid from the estate, but this is not guaranteed.
If your claim is successful or settled, your legal fees may be covered by the estate
If your claim fails, the court may order you to pay your own legal costs—and sometimes those of the estate
Getting early legal advice can help you avoid unnecessary risk.
Common Scenarios That Lead to Will Disputes
Children left unequal shares without explanation
Stepchildren or blended families with unclear entitlements
New spouses cutting out children from earlier relationships
Caregivers or companions not included in the Will
Homemade Wills that are invalid or unclear
Family businesses or farms passed to only one beneficiary
A lawyer can help clarify your legal position in these complex family situations.
How to Avoid Contested Wills
From the estate planning side, many disputes can be avoided by:
Hiring a Will lawyer to draft a legally valid and clear Will
Regularly updating the Will after life changes (marriage, divorce, children)
Providing reasons for unequal distribution (e.g. in a letter of wishes)
Setting up trusts for vulnerable or high-risk beneficiaries
Communicating intentions with family members in advance
How an Estate Litigation Lawyer Can Help
A lawyer experienced in contested estates and Will disputes in NSW will:
Advise you on your eligibility and chances of success
Help gather and present compelling evidence
Negotiate on your behalf with other parties
Represent you in the Supreme Court of NSW, if needed
Help protect your rights while minimising emotional and financial strain
Whether you’re contesting or defending a Will, professional legal guidance is critical.
Lyon Legal Services: Your Experts in Will Disputes and Estate Litigation
At Lyon Legal Services, we understand how stressful and emotional Will disputes can be. We offer:
Expert advice on contesting or defending Wills in NSW
Tailored strategies for Family Provision Claims
Sensitive and practical guidance for blended families and complex estates
Assistance with mediation and alternative dispute resolution
Strong courtroom representation when required
Our goal is to help you achieve a fair outcome while protecting relationships where possible.
Frequently Asked Questions
Can siblings contest a Will in NSW?
Yes, siblings can contest a Will, but only if they meet the criteria as an eligible person—for example, if they were financially dependent on the deceased or lived in a close personal relationship.
Can a Will be contested after probate is granted?
Yes, but you must file the Family Provision Claim within 12 months of the date of death, regardless of when probate is granted.
Can I be removed as an executor if a Will is contested?
Possibly. If you are acting improperly or with bias, the court can remove you and appoint an independent administrator.
Conclusion
Contesting a Will in NSW is a serious legal process that requires careful consideration, clear evidence, and expert guidance. Whether you feel unjustly left out of a Will or are defending against a claim, understanding your rights and obligations under the Succession Act 2006 is vital.
With the right legal advice, many Will disputes can be resolved amicably and fairly—without the need for drawn-out litigation. However, if court action is necessary, an experienced estate litigation lawyer can protect your interests every step of the way.
Need Advice on Contesting a Will in NSW?
Get in touch with Lyon Legal Services today for a confidential consultation. We offer practical, results-driven legal support in all matters related to Wills, estates, and probate litigation.
