How to Contest a Will in Sydney, NSW | Hillcrest Family Legal

Thinking of contesting a will in NSW? Learn the difference between challenging validity and family provision claims. Book a consult with our Sydney team.

Contesting a will in NSW isn’t one single legal process. It’s two entirely different actions, but people constantly mix them up. You might be arguing the will itself is legally invalid. Or, you accept the document is valid but argue it leaves you without adequate financial support, this is a family provision claim under Chapter 3 of the Succession Act 2006 (NSW). The law is different for both. So is the evidence you need to gather. We run these matters out of the Supreme Court of NSW in Sydney every week. Let’s break down which path actually applies to your situation.

Key takeaways

Two separate actions in NSW: challenging a will’s validity, and making a family provision claim for inadequate provision under Chapter 3 of the Succession Act 2006 (NSW).
Both go to the Supreme Court of NSW (Equity Division for family provision), not the Federal Circuit and Family Court.
A family provision claim must be filed within 12 months of the date of death. Extensions are possible but discretionary.
Eligible persons under s57 of the Succession Act include spouses, de facto partners, children, former spouses, certain grandchildren and dependants, and people in a close personal relationship with the deceased.
The Supreme Court filing fee for commencing a family provision summons is currently $1,384, with a hearing allocation fee of $2,762 if the matter proceeds to hearing.
Roughly 87% of family provision matters resolve at mediation in NSW, so most never see a final hearing.

Challenging the will vs making a family provision claim, what’s the difference?

When you challenge a will’s validity, you are telling the court the document shouldn’t exist. Maybe the person lacked testamentary capacity at the end of their life. Maybe they were coerced. Win this argument and that will gets scrapped. The court will then look for an older, valid will to use instead.

Family provision claims are the opposite. You aren’t trying to throw the will out. You’re asking the court to step in and adjust who gets what because you were left without adequate provision for your maintenance or advancement in life. The estate just gets carved up differently. You need to know exactly which fight you are picking early on.

Who can contest a will in NSW?

We have to look at what you are actually trying to achieve. Challenging a document’s validity requires you to have a direct financial stake. In practice we call this having a “sufficient interest”. You might be someone named in an older version of the will. Or maybe you stand to inherit under intestacy laws if the current document gets thrown out. Strangers cannot bring this kind of claim. Neither can creditors.

To bring a family provision claim, you must be an eligible person under s57 of the Succession Act 2006 (NSW). That list is:

A spouse of the deceased at the time of death
A de facto partner at the time of death (same or opposite sex, including registered relationships)
A child of the deceased (including adopted and, in some cases, step-children through a qualifying domestic relationship)
A former spouse of the deceased
A person who was, at any time, wholly or partly dependent on the deceased and a member of the same household
A grandchild who was, at any time, wholly or partly dependent on the deceased
A person in a close personal relationship with the deceased at the time of death

Can a stepchild contest a will in NSW?

A stepchild isn’t automatically an eligible person under s57. They usually qualify through the dependency limb, if they were wholly or partly dependent on the deceased and a member of the household, typically during childhood. If they had no financial relationship with the step-parent and weren’t part of the household, the path is much harder.

Can a grandchild contest a will in NSW?

A grandchild is an eligible person only if they were wholly or partly dependent on the deceased at some point. Being a grandchild alone isn’t enough. Courts look at direct financial support, school fees paid, periods living in the household, not just the family relationship.

Can an ex-spouse or former wife contest a will in NSW?

Yes, a former spouse is specifically listed as an eligible person under s57. Whether a claim succeeds depends on the rest of the facts, particularly whether there was a property settlement or binding financial agreement that dealt with financial claims between them, and whether they were receiving support from the deceased at the time of death.

Can a de facto partner contest a will?

Yes. A de facto partner at the time of death is an eligible person. The relationship is defined under s21C of the Interpretation Act 1987 (NSW), and it covers same-sex relationships and registered relationships. The fact that the deceased was still legally married to someone else or going through a marriage separation doesn’t automatically rule out a de facto claim.

Can you contest a will if you’re not a beneficiary?

For a family provision claim, no, you don’t need to be in the will. You need to be an eligible person under s57 who wasn’t adequately provided for. Plenty of successful claims are brought by people who weren’t named at all.

What is a “close personal relationship” under the Succession Act?

This category is heavily misunderstood. It covers two adults living together where one provides the other with domestic support. It is not about romance. It is about genuine care. But the law draws a hard line on paid arrangements. If you received a wage to look after the deceased, or cared for them through a charity, you are out. The category is strictly for informal, unpaid support systems.

Grounds for challenging a will’s validity

NSW courts only recognise a handful of specific reasons to strike down a will.

Lack of testamentary capacity

The most common is a lack of testamentary capacity. The person making the will simply didn’t grasp what they were signing or understand the extent of their assets. The legal test for this is over 150 years old in Banks v Goodfellow. But it still dictates how the Supreme Court handles these disputes today. The will-maker must:

Understand they’re making a will and what that means
Understand, in general terms, the nature and extent of their property
Understand and appreciate the moral claims that people (typically family) have on them
Not be suffering from a disorder of the mind or delusion that affects the disposition

In practice, capacity challenges tend to centre on wills made late in life, often where there’s a medical record of cognitive decline, a recent diagnosis of dementia, or a dramatic last-minute change in favour of a newer acquaintance.

Undue influence

This isn’t persuasion, it’s coercion. The will-maker’s mind was overborne, and the will doesn’t reflect their real intentions. Courts set the bar high. Flattery, long conversations, even aggressive persuasion by someone who benefits under the will usually isn’t enough. There has to be evidence that the will-maker’s free will was actually subjugated. These cases are notoriously difficult to prove because the main witness is dead.

Fraud

Someone obtained the will through deception, for example, the will-maker was told they were signing something else, or a beneficiary fabricated circumstances that induced the gift.

Forgery

The signature isn’t the will-maker’s. Handwriting experts are almost always involved.

Lack of knowledge and approval

The will-maker didn’t actually know what was in the document they signed. This often overlaps with capacity and undue influence, but it’s a standalone ground. It tends to come up where someone else prepared the will, the will-maker didn’t read it, and the contents are surprising.

Improper execution

The will wasn’t signed and witnessed in accordance with Part 2.1 of the Succession Act. The Succession Act does offer a lifeline here. Section 8 gives the Supreme Court power to accept a document even if the signatures are a mess. But you cannot rely on it. The judge has total discretion to say no.

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

The clock starts ticking the day the person dies. For a family provision claim, the absolute cutoff is 12 months. Section 58 of the Succession Act is strict on this. Miss that window and you are fighting an uphill battle just to get the Supreme Court to accept your paperwork.

For a validity challenge, there’s no strict statutory time limit, but you should act before probate is granted if at all possible. Judges hate unwinding probate once it is granted. If you wait until after the grant to complain, you will spend your first day in court explaining your delay to the bench. We use a probate caveat to stop that happening. Filing one freezes the grant for six months. That buys us time to investigate the estate properly before the assets get moved.

The process: what happens

Family provision claims

To start a family provision claim, we file a Summons in the Equity Division of the Supreme Court. We also have to file an affidavit and formally list anyone else who might have a competing claim on the estate. The current filing fee is $1,384.

Procedure here changed recently. As of June 2024, Practice Note SC EQ 07 forces everyone to put their cards on the table fast. Both sides now have to prepare a strict Disclosure Statement. This means you have to detail your financial position and the exact state of the estate right out of the gate.

The first return date is usually 6–8 weeks after filing. The matter then goes to compulsory mediation under s98 of the Succession Act. Most matters settle here. In our experience, and consistent with court statistics, a strong majority of family provision claims resolve at or shortly after mediation without a final hearing.

If mediation doesn’t resolve it, the matter is listed for hearing before a judge. The hearing allocation fee is currently $2,762. From filing to final hearing typically runs 12–18 months.

Validity challenges

Validity challenges are handled in the Probate List. Depending on timing, you’ll either file a caveat to prevent probate, file an appearance if probate proceedings are already on foot, or commence contested proceedings by statement of claim. Validity disputes drag on longer than provision claims. They just require much more digging. We end up pulling years of medical records and interviewing witnesses about the deceased’s state of mind right before they signed the document. Sometimes we even have to bring in handwriting experts to check signatures.

How much does it cost to contest a will in NSW?

It depends. Anyone quoting a flat figure before looking at the estate is just guessing.

Most family provision matters settle at mediation. When they do, a claimant’s legal costs usually land in the tens of thousands. But that number shifts depending on the size of the asset pool and how aggressively the executor fights the claim. Matters that go to hearing can run considerably higher, often into six figures on each side.

Who pays? Under s99 of the Succession Act, the court has discretion over costs. A few things worth knowing:

Successful family provision applicants usually have their costs paid from the estate
Unsuccessful applicants can be ordered to pay their own costs and the estate’s costs
Estates don’t always have deep pockets. In smaller estates, costs can eat a meaningful portion of what’s in dispute
The Succession Act now permits regulations fixing maximum costs payable out of smaller estates, specifically to stop legal fees from swallowing modest estates

This is why early advice matters. A matter with strong facts and a reasonable estate is often worth running. A marginal claim against a $200,000 estate almost never is.

Is it worth contesting a will?

Three honest filters before committing:

Eligibility. Are you actually an eligible person under s57, or can you establish a legitimate interest for a validity challenge? If not, the case doesn’t start.
Merits. Ask yourself if the provision was actually inadequate. You have to weigh what you received against the total size of the estate and your own bank balance. If you are challenging validity instead, you need hard proof. Suspicion isn’t enough. We need medical records or witness testimony.
Proportionality. You also have to consider the math. Weigh the legal fees against what you realistically stand to gain.

NSW courts are absolutely clear on one thing: family provision is about need, not making sure everything is split evenly. Dimos v Burndred [2024] NSWSC 434 is a recent reminder, an adult child who was financially independent had their claim dismissed, even though they were plainly an eligible person. Being eligible gets you through the door. Being inadequately provided for, on the evidence, is what wins the case.

Notional estate, a NSW-specific point worth knowing

This is one of the most significant features of NSW law that doesn’t exist in most other states. Under Part 3.3 of the Succession Act, the court can designate property as notional estate, property that isn’t technically part of the deceased estate but can be clawed back for the purpose of a family provision order.

It applies to “relevant property transactions” that happened:

Within three years before death, if done with the intention of defeating a claim
Within one year before death, if the deceased had a moral obligation to provide for an eligible person
On or after death (including, in some cases, superannuation death benefits)

Translation: someone can’t fully avoid a family provision claim by giving assets away before they die or by putting property into joint names. The court can reach back. Most generic online content about contesting a will misses this entirely, and it changes the economics of plenty of NSW claims.

Do you have to go to court?

In most family provision matters, no. Compulsory mediation under s98 resolves the majority of claims in a Sydney boardroom or at the court’s mediation registry, not in front of a judge. Validity challenges are more likely to need court input because the issues are binary (was the will valid or not?) and harder to compromise.

Either way, a competent Sydney estate lawyer is trying to resolve the matter without a final hearing. Hearings are expensive, slow, and inherently unpredictable.

This guide is general information, not legal advice. How we handle your matter will depend entirely on the specific facts of the estate and the strength of your evidence. Contact us to arrange an initial call with our Sydney team about your situation.