Losing a family member is an incredibly difficult experience. Discovering that you have been left out of their Will can make the situation even more challenging.
In Australia, a person generally has the right to decide who receives their assets after they die. However, the law recognises that certain people may have relied on the deceased for financial or personal support and may have grounds to make a claim against the estate.
If you believe you have not received adequate provision from a deceased person’s estate, you may be able to challenge the Will or contest the estate. In New South Wales, this is commonly done through a family provision claim under the Succession Act 2006 (NSW).
For advice about your circumstances, our Wills and Probate Lawyers can assist with understanding your rights and available options.
Can you contest a Will in NSW?
Yes, in certain circumstances, you may be able to contest a Will in NSW. There are two main ways a person may challenge a deceased person’s estate:
| Type of claim | What it involves |
|---|---|
| Challenging the validity of a Will | A person may argue that the Will is not legally valid because the Will-maker lacked testamentary capacity, did not understand the document they signed, or was affected by improper influence. |
| Making a family provision claim | A person may claim that the deceased failed to provide adequate provision for their proper maintenance, education, or advancement in life. |
A family provision claim does not simply challenge a person’s wishes in their Will. Instead, the Court considers whether the deceased had a responsibility to provide for the applicant and whether the estate should provide further support.
Further information about family provision claims is available under the Succession Act 2006 (NSW).
Who can contest a Will in NSW?
Only certain people can make a family provision claim. These people are known as “eligible persons” under the Succession Act 2006 (NSW).
An eligible person may include:
- A spouse of the deceased at the time of death;
- A de facto partner of the deceased at the time of death, including same-sex partners;
- A child of the deceased;
- A former spouse or former de facto partner who was receiving or entitled to receive maintenance from the deceased when they died;
- A grandchild of the deceased in certain circumstances;
- A step-child of the deceased in certain circumstances;
- A parent of the deceased.
Meeting the definition of an eligible person does not automatically mean the claim will succeed. The Court must consider whether the deceased failed to make adequate provision for that person’s circumstances.
What must you prove to contest a Will?
To make a successful family provision claim, an applicant generally needs to show two things:
- The deceased had an obligation or responsibility to provide for them.
- The deceased failed to make adequate provision for their proper maintenance, education, or advancement in life.
The Court considers each case individually. Factors that may be examined include:
- The relationship between the applicant and the deceased;
- The applicant’s financial circumstances and future needs;
- The size and value of the deceased estate;
- The needs and circumstances of other beneficiaries;
- The deceased’s obligations towards family members and dependants.
How long do you have to contest a Will in NSW?
Strict time limits apply to family provision claims in NSW. Generally, an applicant must file a claim within 12 months from the date of the deceased’s death.
If you believe you may have a claim, obtaining legal advice as soon as possible is important. Missing the deadline may prevent you from making a claim unless the Court grants permission in limited circumstances.
Do you have to go to Court to contest a Will?
Not necessarily. Many estate disputes resolve through negotiation or mediation before reaching a final Court hearing.
Mediation allows the parties to discuss their concerns and explore possible outcomes. Resolving a dispute early can help reduce legal costs, delays, and stress for everyone involved.
However, if the parties cannot reach an agreement, the matter may proceed to Court for determination.
What should you do if you have been left out of a Will?
If you believe you have been unfairly excluded from a Will, you should take steps to understand your legal position as soon as possible.
- Obtain a copy of the deceased person’s latest Will, if available;
- Gather information about your relationship with the deceased;
- Review your financial circumstances and future needs;
- Seek advice about whether you may be an eligible person;
- Act quickly due to strict time limits applying to estate claims.
Having a copy of the Will can help your lawyer assess the estate distribution and advise you about your options.
Frequently asked questions about contesting a Will in NSW
Can a child contest a Will in NSW?
Yes. A child of the deceased may be eligible to make a family provision claim if they believe they have not received adequate provision from the estate.
Can a person contest a Will if they were not included?
Being excluded from a Will does not automatically create a right to make a claim. The person must usually meet the eligibility requirements and demonstrate that the deceased failed to provide adequately for them.
How much can you receive from contesting a Will?
There is no guaranteed amount. The Court considers the circumstances of the applicant, the deceased, the estate, and other beneficiaries before deciding whether further provision should be made.
How long does a Will contest take in NSW?
The timeframe depends on the complexity of the estate, the number of parties involved, and whether the matter settles through negotiation or proceeds to Court.
Need Advice About Contesting a Will in NSW?
Being left out of a Will can create uncertainty and emotional stress. If you believe a deceased family member failed to provide adequately for you, you may have options under NSW succession law.
Our Wills and Probate Lawyers can advise you about your eligibility, time limits, and the best approach for your circumstances.
Contact us on (02) 9818 2888 or email [email protected].