In New South Wales, challenging a will and contesting a will are different legal actions, though the terms are often used as if they mean the same thing. A challenge disputes whether the will is valid. Contesting a will usually refers to a family provision claim, which accepts the will as valid but argues that the provision left to you was not adequate.

Why does the distinction matter? Each action has its own eligibility rules, its own evidence, its own time limits, and the outcomes bear little resemblance to one another. A claimant who pursues the wrong one can spend twelve months and considerable money achieving nothing.

This guide sets out both pathways under NSW law. It then addresses what people most often want to know before they seek advice: how much it costs to contest a will, the realistic success rate of contesting a will in NSW, whether a grant of probate closes off a claim, and the reasons claims do not succeed.

Contesting a will: a family provision claim

When most people say they want to contest a will, a family provision claim is what they have in mind. They have been left out of the will, or left with less than they expected.

In NSW, a family provision claim runs under Chapter 3 of the Succession Act 2006 (NSW). It doesn’t attack the will. It accepts that the will may be perfectly valid and asks the Supreme Court to step in anyway, on the basis that the deceased failed to make adequate provision for the claimant’s proper maintenance, education, or advancement in life.

There is one point worth making plainly at the outset, because it is the most common misunderstanding. A family provision claim is not about fairness. The court isn’t there to even things out between siblings or correct a parent who played favourites. The High Court made this clear in Pontifical Society for the Propagation of the Faith v Scales: a court shouldn’t disturb a will simply because the result looks hard or unfair. Its role is a protective one, concerned with whether a person was left adequately provided for, rather than with whether the will was just.

Who can contest a will in NSW?

Eligibility is set by section 57 of the Act. The categories include a spouse or de facto partner at the date of death, a child of the deceased, a former spouse, a person who was wholly or partly dependent on the deceased and a member of their household, a dependent grandchild, and a person who lived with the deceased in a close personal relationship at the time of death. Some of these categories carry an extra requirement. As well as eligibility, the claimant has to establish “factors warranting” the claim, which is the law’s way of asking why this particular person should have a moral call on the estate.

If the claim succeeds, the will isn’t torn up. The court simply orders that provision be made for you out of the estate. The document stands; the distribution changes.

Challenging a will: questioning its validity

Challenging a will is a different argument entirely. You’re not asking for a bigger slice. You’re saying this document shouldn’t be treated as the deceased’s will at all.

If a validity challenge succeeds and the will is set aside, the estate doesn’t pass under it. It passes under the deceased’s previous valid will, or, if there isn’t one, under the rules of intestacy. That can completely redraw who inherits, which is why these disputes tend to be harder-fought than family provision claims.

The grounds for challenging a will in NSW usually come down to one or more of the following:

• Lack of testamentary capacity. The deceased didn’t understand what they were doing when the will was made, often raised where dementia, a stroke, or serious illness was in play.
• Undue influence. The will reflects someone else’s pressure rather than the deceased’s genuine wishes. This is a high bar in estate law; mere influence isn’t enough; it has to amount to coercion.
• Fraud or forgery. The will was forged or altered, or the deceased was deceived into signing it.
• Lack of knowledge and approval. The deceased signed the will without understanding or approving its contents. Courts most often consider this ground where the circumstances surrounding the will’s preparation appear suspicious.
• Improper execution. The will wasn’t signed and witnessed as the law requires. NSW does have a dispensing power that can, in limited cases, treat an informal document as a valid will, but you can’t count on it.

A familiar pattern brings several of these together: a new will surfaces late in the picture, heavily favouring one person, made when the testator was unwell, and arranged by the very beneficiary who gains from it. None of those facts wins a case on its own. Stacked together, they’re what a validity challenge is built from.

The practical difference, side by side

If you contest (family provision claim), you accept that the will might be valid and ask for a larger share. The dispute centres on relationships, financial need, competing claims, and the size of the estate. The will survives, and the court adjusts the provision.

If you challenge (validity), you argue the will shouldn’t operate at all. Here, the dispute turns on medical capacity, suspicious circumstances, and how the will was prepared and signed. If you win, an earlier will or intestacy takes over.

In some matters, both paths are justified together. A validity challenge and a family provision claim can run in the alternative, which happens most often where a will was made late in life, where a blended family is in conflict, or where someone had influence over an elderly testator. Which approach leads depends on the evidence, since the two carry different risks and offer different leverage in a negotiation.

Can you contest a will after probate?

In most cases, yes. You can contest a will after probate has been granted. The grant confirms that the executor has authority to administer the estate. It does not extinguish an eligible person’s right to bring a family provision claim, provided the claim is made within the time limit.

The risk in waiting is practical. Once probate is granted, the executor may begin distributing the estate, and assets that have already passed to beneficiaries are harder to recover under any later order. Delay tends to weaken a claimant’s position for that reason.

A validity dispute works on a different footing. Where the aim is to prevent a will being admitted to probate, the step is to lodge a probate caveat in the Supreme Court of NSW before the grant is made. The caveat holds up the application until the question of validity has been resolved. So while a family provision claim can usually proceed after probate, a concern about validity is better raised earlier.

What is the success rate of contesting a will in NSW?

For eligible claimants, the success rate of contesting a will in NSW is high. That figure on its own gives a distorted picture, because the great majority of claims are settled long before a judge is asked to decide anything.

Family provision claims settle early and settle often. In 2021, 872 family provision claims were filed in the NSW Supreme Court, and 845 were resolved by negotiation or mediation, with only a handful proceeding to a final hearing each year. Roughly 80% settle at mediation, a confidential session where a mediator works the parties toward agreement. There’s a structural reason for that. Legal costs are commonly ordered to be paid out of the estate, so the longer a matter runs, the more it depletes the very estate everyone is arguing over, which gives both sides a strong incentive to resolve it.

So when a firm advertises a near-100% success rate, read it correctly. It usually reflects careful case selection, since weak claims are screened out before filing, combined with that high settlement rate. It doesn’t mean every claim is a winner. It means eligible claimants with genuine need and a competent lawyer tend to recover something, usually without a trial.

Why claims fail: unsuccessful cases of contesting a will

Most legal pages skip this because it doesn’t help sell a claim. But understanding the unsuccessful cases of contesting a will tells you more about your own chances than any success statistic.

Claims fall over for a few recurring reasons.

The “unfairness” trap

This is the most common by some distance. People come in convinced that because the will is unfair, they’ll win. As above, NSW courts don’t decide on fairness; they decide on adequate provision for proper maintenance. Someone who is financially secure and self-supporting may feel genuinely wronged by a will and recover nothing at all. The court is assessing need and the adequacy of provision, and a sense of unfairness, however real, is not the test.

Missing the time limit

Hard deadlines end claims before they start. Extensions exist, but they’re discretionary and far from guaranteed.

Weak or absent evidence

A validity challenge built on suspicion rather than medical records, file notes, and witness accounts tends to collapse. Family provision claims need real proof of need and relationship, not just an assertion that you deserved more.

Overreaching at mediation

A claimant who refuses a sensible offer and pushes for a trial can end up worse off, both in what they recover and in costs. NSW courts are increasingly willing to order a claimant who runs a weak claim or rejects a reasonable settlement to pay their own costs, and sometimes the estate’s.

Ineligibility

A surprising number of would-be claimants simply don’t fit a section 57 category, or fall into one that requires “factors warranting” they can’t establish.

The pattern is clear enough. Claims don’t usually fail because the system is rigged. They fail because the claimant misread what the law actually rewards.

How much does it cost to contest a will?

The cost of contesting a will in NSW depends almost entirely on how far it goes, and most don’t go far.

A matter that settles at or before mediation costs a fraction of one that runs to a final hearing. A contested Supreme Court trial can comfortably exceed $100,000 per side, which is exactly why so few reach that point. Filing fees, an affidavit, evidence-gathering, and mediation make up the bulk of costs for the typical claim that resolves by agreement.

Who pays is the part people get wrong. Costs are often ordered out of the estate, but that’s not automatic. If your claim is unsuccessful or frivolous, or you reject a reasonable offer, you can be ordered to pay your own costs and the other side’s. The assumption that the estate always pays is a costly one to make.

What about no-win, no-fee?

Plenty of NSW estate lawyers offer no-win, no-fee arrangements for family provision claims, and for a genuine eligible claimant, they can make a real difference to access. A no-win, no-fee arrangement generally covers the lawyer’s professional fees if the claim does not succeed. Two things it usually does not cover are worth understanding before you start. Disbursements are normally still payable, and the arrangement offers no protection against an adverse costs order if the court decides you should pay the other side’s costs. What it does is make a claim possible for a claimant who could not otherwise fund one. The underlying financial risk of running the matter remains.

Is it worth contesting a will?

Whether it’s worth contesting a will comes down to three questions, and they’re worth sitting with honestly before you commit any money.

Are you eligible? If you don’t fit a Section 57 category, the rest is academic.

Is there a genuine need, or a real validity problem? A strong family provision claim rests on demonstrable financial need against an estate large enough to meet it. A strong validity challenge rests on evidence, whether medical, documentary, or circumstantial, rather than a feeling that something was off.

And is the estate worth pursuing? An order for further provision is only as good as the assets behind it. A modest estate already distributed to beneficiaries can make even a winnable claim not worth the cost and stress.

If the answer to all three is yes, contesting is often worth it, and given how many claims settle, it rarely means a courtroom. If one answer is a clear no, early advice that steers you away from a claim can be the most valuable advice you get.

How long do you have to contest a will in NSW?

In NSW, you have 12 months from the date of death to file a family provision claim. That’s set by section 58 of the Succession Act 2006 (NSW).

The court can extend that period, but only in limited circumstances and at its discretion, so treat the deadline as firm and work back from it. Validity disputes don’t run on the same fixed clock, but they have their own timing pressure: once probate is granted and the estate starts being administered, your practical options narrow fast. Either way, the message is the same. Evidence fades, witnesses’ memories blur, and assets get distributed. Early advice protects all three.

What evidence do you need to contest a will?

The evidence needed to contest a will depends on which claim you’re running.

For a family provision claim, the court looks at your financial position, your relationship with the deceased, your needs going forward, the size of the estate, and any competing claims. In practice, that means bank statements, details of income and expenses, medical evidence if health is a factor, and a clear, documented picture of your connection to the deceased, usually set out in a detailed supporting affidavit.

For a validity challenge, the evidence is more forensic: the deceased’s medical records and any capacity assessments, the solicitor’s file notes from when the will was prepared, the circumstances of signing and witnessing, and anything pointing to pressure or suspicious involvement by a beneficiary. The strongest validity cases are the ones built on records, not recollection.

How Hillcrest Family Legal approaches will disputes

Hillcrest Family Legal acts in will disputes and family provision claims across NSW. Most matters turn on early forensic work: getting the medical records, the solicitor’s file, and the execution details on the table quickly, then reading them honestly.

That honesty cuts both ways. Sometimes the evidence points to a strong claim worth pressing. Sometimes it points the other way, and the right advice is not to spend twelve months and significant money chasing an outcome the law won’t give. Identifying the real pressure points early is what drives a sensible settlement at mediation, or, where it’s genuinely warranted, a properly prepared case for the Supreme Court of NSW.

Speak with us: confidential case review

If you’ve been left out of a will, you believe the provision made for you isn’t adequate, or you have real concerns about whether a will is valid, get advice early. The 12-month clock matters, and so does evidence that’s still recoverable.

A confidential, structured review can tell you whether you’re eligible to bring a family provision claim, whether there’s a sound basis to challenge a will’s validity, what evidence your matter needs, and the most sensible strategy from here.

Speak with the team at Hillcrest Family Legal to book a confidential case review.