Contesting a Will in NSW

Family Provision Claims

In this section, contesting a Will refers to making a claim for provision from a deceased person’s estate. This is commonly referred to as making a Family Provision Claim.

When someone contests a Will in NSW, they are not disputing the validity of the Will. Rather, they are arguing that they have not been adequately provided for their proper maintenance, education and advancement in life, and provision should be made for them from the deceased person’s estate.

This differs to challenging a Will, which refers to challenging the validity of a deceased person’s Will, for example, if the testator did not have the requisite capacity to make their Will, or fraud is involved, and you seek to overturn the Will.

How do you contest a Will in NSW?

You can contest a Will in NSW by making an application in the Supreme Court of NSW. Applications are made by filing a Summons and supporting documents, including an affidavit, in the Supreme Court of NSW.

Once your Summons has been filed, you will be allocated a Court date. The Court date is usually 28 days from the date that you file your Summons. This Court date is referred to as a directions hearing. Normally the Judge will set a timetable for your matter at this directions hearing.

What are the time limits for contesting a Will in NSW?

In NSW, you have twelve (12) months from the date of death of a deceased person to contest their Will. This means that you must submit your application for a Family Provision order in the Supreme Court of NSW within twelve (12) months from the date of death of the deceased person (see section 58 of the Succession Act 2006 (NSW)).

If your application is not submitted within that time period, you must seek the consent of the other parties to the proceedings to make your application.

If you do not lodge your application within twelve (12) months of the date of death and the other parties do not consent to your application, you will need to seek leave from the Court to bring an ‘out of time’ application. In order to be successful, you need to prove to the Court that you have sufficient cause to bring an ‘out of time’ application.

Contesting a Will in NSW

Who is eligible to contest a Will in NSW?

In NSW, there are several eligible applicants. Section 57 of the Succession Act 2006 (NSW) lists the following persons as eligible to contest a Will in NSW:-

A spouse or de facto partner of the deceased;
A child of the deceased (including an adopted child);
A former spouse of the deceased;
A grandchild who was dependent on the deceased;
A person who was dependent on the deceased and a member of the household of the deceased;
A person who was living in a close personal relationship with the deceased at the time of the deceased person’s death.

A close personal relationship is defined in the legislation as a relationship between two adults, who live together and one or each provides the other with personal care and domestic support. The persons living together do not need to be related by family.

However, if one of the persons receives a fee or reward, this is not considered to be a close personal relationship for the purposes of this section. Further, if one of the persons provides the care on behalf of another person or organisation, such as a government agency, this is not considered to be a close personal relationship.

Maree Harris
Senior Associate