Contest A Will FAQs

Frequently Asked Questions

How to Contest a Will in NSW: FAQs

Who can contest a Will in NSW?

The following individuals are eligible to make a family provision claim in NSW:

  • Surviving husband or wife of the deceased person
  • De Facto Partners (including those who were in same sex relationships)
  • Children (Includes adult children, minor children, and adopted children)
  • Former spouses of the deceased person
  • Members of the deceased’s household who were wholly or partly dependent on the deceased (including step-children and grandchildren who lived with the deceased)
  • People who had a “close personal relationship” with the deceased. A close personal relationship is a relationship between two adult persons who are living together and where one or each of those persons provides the other with domestic support and personal care.

If you are not an eligible person, you may still be in a position to Challenge a Will depending on the circumstances of your case.

The best way to confirm your eligibility is to call WillClaim Lawyers on (02) 8875 7792, or make an enquiry through our website.

We offer a no-obligation appraisal of your case and provide you initial advice if you have a chance to succeed in contesting a Will.

How long do you have to contest a Will?

In NSW you have one (1) year from the date of death to file a family provision claim.

In some circumstances (depending on your reason) the Court may allow you to file a claim outside this time limit.

Special circumstances in a family provision claim for an extension of time include situations where:

  • You are not aware that the person passed away; or
  • You did not know of the relevant time limits

You should seek legal advice as soon as possible after the death of the Testator (deceased).

Call WillClaim now. Our legal team can arrange a free appraisal and determine if you have a valid claim.

What are the main reasons for contesting a Will?

The following are the primary reasons why people usually contest a Will in NSW:

A. You have been left out of the Will entirely.

If you are an ‘eligible person’ (see above) and you have been totally excluded from the Will then you may have grounds to contest the Will.

B. Your bequest was inadequate.

If you have received some provision from the estate but you feel it was inadequate, then you may have grounds to contest the Will for a greater share of the estate.

Common reasons why people contest Wills in NSW:

  • The spouse of the deceased has received all or most of the estate, whilst children from a previous relationship have been excluded or received only minor provision
  • The spouse of the deceased has been excluded from the estate of the deceased (or poorly provisioned for) and children from a former relationship have received all or most of the assets
  • One child of the deceased has received a greater share of the estate than the other child or children

How do I contest a Will?

To contest a Will, you must first be an eligible person (see above) and be able to satisfy a court that you were inadequately provided for in the Will.

Every case will be determined by the court based on facts that may include the following:

  • The relationship between the applicant and the deceased;
  • Any obligations or responsibilities owed by the deceased to the applicant and any beneficiary;
  • The size of the estate;
  • The financial needs, both present and future of the applicant and any beneficiary;
  • If the applicant is cohabitating with another person – the financial circumstances of the person;
  • Any physical, intellectual or mental disability of the applicant or any beneficiary;
  • The age of the applicant when the application is considered;
  • Any contributions made to the building up of the deceased’s estate or to the welfare of the deceased;
  • Any gift made for the applicant by the deceased person, either during the deceased’s lifetime or from the deceased person’s estate;
  • The wishes of the deceased;
  • Whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death;
  • Whether any other person is liable to support the applicant;
  • The character and conduct of the applicant before and after the date of death of the deceased person;
  • The conduct of any other person before and after the date of death of the deceased person;
  • Any relevant Aboriginal or Torres Strait Islander customary law; and
  • Any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

Wherever possible, we will attempt to negotiate a settlement of your claim with the estate without the need to Court proceedings.

If the matter cannot be settled out of Court, you will need to file an application in the Supreme Court of New South Wales with a comprehensive Affidavit explaining the circumstances of your case.

The Court will ask the estate to respond and the executors of the estate will be asked to file their own evidence. The parties will be asked to attend a mediation to try and settle the claim.

If the parties involved fail to settle in mediation, the case will proceed to a hearing before a Supreme Court judge.

If I have been left something in a Will, can I still make a claim?

Yes, you can still make a claim even if you have been left something in a Will if you feel that the provision is inadequate.

The Court will determine what is “adequate provision” based on the facts of your case.

For an initial appraisal of your case and to determine if the provision you have received in a Will is inadequate, you should consult a Dispute Lawyer in NSW.

Call WillClaim for a quick chat on (02) 8875 7792.

Can I contest a Will if I am the executor of the Will?

Yes, an executor of a Will can still make a family provision claim, but it may be advisable that you should first resign from the role of executor.

If you are an executor of a Will and you wish to make a claim, consult one of our Dispute Lawyers for more information. Call WillClaim on (02) 8875 7792.

Do I have to go to Court if I contest a Will?

Most cases never get to Court. In the vast majority of cases, the parties agree to settle so out of Court.

If your claim cannot be settled out of Court, then you will need to file an application with the Court and the case will proceed to compulsory mediation. You will be required to attend the mediation in person. If the case does not settle at the Court ordered mediation it will proceed to a hearing before a Judge. You will be required to attend Court and to give evidence at the hearing.

While appearing in Court can be stressful, you can be sure that your lawyers from WillClaim will guide you throughout the process.