Contesting a Will in New South Wales

7 October 2025 in Wills and Estates Law | 5 min read | skip to FAQs

In NSW contesting a will may occur for two broad reasons. Firstly, when the validity of the will is challenged and secondly, when the will is valid but a person believes that they have been excluded from the will or that the provisions given to them are inadequate. In the latter case, the individual must make a family provision claim. Only certain individuals are able to make a a family provision claim. They include spouses, children and de-facto partners.

Contesting the Validity of a Will

The validity of a will can be challenged for several reasons, including a poorly drafted will, if the executor is considered unfit or where the will has errors. If this is the case, the parties contesting make an application to the court on the grounds that they believe the will is invalid.

Contesting a Will based on Inadequate Provisions

This is the most common reason that wills are contested. This occurs when the party believes that they have been excluded from the will or that the provisions left to them are inadequate. The validity of the will is not questioned. To contest a will for this reason involves making a family provision claim.

Contesting a Will via a Family Provision Claim

People who wish to contest a deceased person’s will where they believe it doesn’t adequately provide for them or has unfairly excluded them need to apply to the court for a family provision order. Family provision orders allow the court to provide a successful applicant with an appropriate portion of the deceased person’s estate. The details and nature of a family provision order made by the court will vary from case to case. It is up to the court to determine the portion of the estate the applicant is entitled to, how many payments will be made to the applicant and whether any conditions apply to the order.

Who can Contest a Will via a Family Provision Claim

Only certain people are allowed to apply for family provision claims, including:

1. The deceased person’s current spouse
2. The deceased’s de-facto partner at the time of death
3. The deceased’s child
4. The deceased’s grandchild (if they were wholly or partly dependent on the deceased at any particular time). For more information on grandchildren contesting a will see our article on can grandchildren can challenge a will.
5. The deceased’s former spouse
6. People in a close personal relationship with the deceased
7. People who lived with the deceased before they died
8. People who lived in a close personal relationship with deceased when they died.

The exhaustive eligibility requirements for family provisions orders are outlined in section 57 of the Succession Act 2006 (NSW).

Time Limits to making a Family Provision Claim

There are time limits for making applications for family provision orders. Applications must be made within 12 months of the deceased person’s death (section 58 Succession Act 2006 (NSW)). Where an application is not made in time, the court may still allow it if the applicant shows sufficient cause to justify the application being late. An exception to the time limit applies when all of the parties to the proceedings consent to the application being made out of time. Put simply that everyone agrees to the time exception.

Making Family Provision Orders

When deciding whether to grant a family provision order, allowing the will to be successfully contested, the court must decide whether the deceased’s will adequately provides for the ‘maintenance, education or advancement in life’ of a person eligible to apply for the order. The court will consider various factors when both making the order and deciding how much to is to be paid to the individual who is making the family provision claim. These include:

1. the relationship between the applicant and the deceased person
2. the obligations or responsibilities owed to the deceased person or other relevant parties
3. the characteristics of the deceased person’s state
4. the financial resources and financial needs of the applicant and other relevant parties
5. the financial circumstances of any person cohabitating with the applicant
6. the physical, intellectual or mental disability of the applicant and other relevant parties
7. the age of the applicant
8. contributions made by the applicant to the deceased person’s estate, welfare or  family
9. any matters which the court considers to be relevant

For the exhaustive list of considerations, please see section 60 of the Succession Act 2006 (NSW).

Mediation

If a person wishes to contest a will they must first try to resolve the issue through mediation. This is set out in s98 of the Succession Act 2006 (NSW). In mediation the relevant parties attempt to negotiate an agreement. The court can give legal effect to an agreement reached between the parties. Mediation is only not compulsory where special reasons justify the court not referring the matter to mediation. The contested estate lawyers at BSM Lawyer Sydney can represent you during mediation. We consult with you prior and advocate on your behalf, presenting your position in a professional and persuasive manner.

Who can Access a Deceased Person’s Will?

Section 54 of the Succession Act 2006 (NSW) defines the people who are entitled to access a deceased person’s will.

1. any person named or referred to in the will, whether as a beneficiary or not
2. any person named or referred to in an earlier will as a beneficiary of the deceased person
3. a parent or guardian of the deceased person
4. the surviving spouse, de factor partner or issue of the deceased person
5. any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate, that is, without a will.
6. any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator (the person who has made the will) if the testator had died intestate
7. any person, including a creditor, who has or may have a claim at law or in equity against the estate of the deceased person
8. any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act (2009) immediately before the death of the deceased person
9. any attorney under an enduring power of attorney made by the deceased person
10. any person belonging to a class of persons prescribed by the regulations

How can BSM Sydney Lawyers assist you?

The wills and estates lawyers at Brander Smith McKnight law firm Sydney are experienced in contesting a will. The friendly estate team at BSM Sydney Lawyer are happy to provide advice and assistance guiding you through the legal complexities of family provision orders. Our capable estate lawyers will listen to your issues, formulate a plan and succinctly and persuasively advocate for you. We will represent you during all phases of negotiation and mediation and if required, litigation. Our senior estate lawyers offer a free 20-minute consultation.

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BSM Lawyer Sydney have offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.