When someone dies, and the will doesn’t reflect what anyone expected, a child left out entirely or a de facto partner receiving nothing after years together, the first question is usually whether anything can be done about it.

In New South Wales, it can. But who can actually contest a will in NSW is more specific than most people realise. The Succession Act 2006 (NSW) defines the categories of eligible persons, the grounds that apply, and the time limits that cut off claims regardless of merit. Each of those elements matters independently. Getting one wrong ends the matter.

This guide covers who can contest a will in NSW, the two distinct legal pathways available, what courts actually consider, and what the process looks like from first advice through to resolution.

Key Takeaways

• There are two separate ways to contest a will in NSW: a family provision claim (inadequate provision) and a validity challenge. They operate differently, and the evidence required for each is distinct.
• Family provision claims are restricted to eligible persons under the Succession Act 2006 (NSW). The category is defined by legislation, not by closeness to the deceased.
• The time limit for a family provision claim is 12 months from the date of death. Not from probate, not from when you found out about the will.
• De facto partners, stepchildren, and people in close personal relationships with the deceased can all qualify, but each category requires proof.
• Most will disputes in NSW resolve at mediation, well before a hearing.

What Does “Contesting a Will” Actually in NSW?

It means different things depending on what you’re challenging.

The first pathway is a family provision claim: an application to the Supreme Court of NSW arguing that the will (or the intestacy distribution) fails to make adequate provision for your proper maintenance, education, or advancement in life. You’re not saying the will is invalid. You’re saying what you received, or were left, isn’t enough.

The second is a validity challenge: arguing that the will itself should not stand, because the testator lacked testamentary capacity when they signed it, was subject to undue influence, or because the document was forged or executed incorrectly.

The two can overlap. A family provision claim can run alongside a challenge to validity, though the strategy and evidence requirements differ significantly. If you’re uncertain which pathway applies to your situation, our guide on how to contest a will in Sydney NSW, covers the practical steps in more detail.

Who Can Contest a Will in NSW: Eligible Persons Under the Succession Act

A family provision claim is only available to an eligible person as defined under the Succession Act 2006 (NSW). The category is specific. Feeling aggrieved or being close to the deceased, is not enough by itself.

Eligible persons under NSW law include:

Spouse or de facto partner of the deceased. This includes a person in a registered relationship, or a de facto partner who was living with the deceased at the time of death. De facto relationships require proof, typically two years of cohabitation, or a shorter period where a child was born of the relationship.

Children of the deceased. This covers biological children, adopted children, and children born through assisted reproductive technology where the deceased was a parent under NSW law. It does not automatically include stepchildren.

Former spouse or former de facto partner. An ex-husband, ex-wife, or former de facto partner can bring a claim, but the court will scrutinise the relationship history, any property settlement reached on separation, and the nature of ongoing financial dependency.

A grandchild of the deceased, where that grandchild was wholly or partly dependent on the deceased at some point.

A person who was a member of the deceased’s household, and who was wholly or partly dependent on the deceased at any point.

A person in a close personal relationship with the deceased at the time of death. This is one of the more misunderstood categories. A close personal relationship requires care and domestic support provided for reasons other than payment, where the two people live together. It is not the same as friendship, and it is not satisfied by regular visits or emotional closeness alone.

If you do not fit one of these categories, you cannot bring a family provision claim under the Succession Act, regardless of how close you were to the deceased or how unfair the distribution appears.

Can a Stepchild Contest a Will in NSW?

Not automatically. Stepchildren are not listed as eligible persons in their own right under the Succession Act 2006 (NSW).

A stepchild can bring a family provision claim if they were wholly or partly dependent on the deceased at some point, and were a member of the deceased’s household. Both elements need to be established. A stepchild who lived with the deceased for twenty years and was financially supported by them is in a very different position from a stepchild who had limited contact. The court examines the actual nature of the relationship, not the label.

This is one of the most common situations we see go wrong. A stepchild who assumed they had the same standing as a biological child discovers, after the estate has moved toward distribution, that they needed to establish dependency and household membership, and that the window to do so was closing.

Can a Grandchild Contest a Will in NSW?

Yes, if they were wholly or partly dependent on the deceased. A grandchild who was raised by their grandparent, financially supported through education, or relied on the deceased for housing will generally satisfy this threshold. A grandchild who had a warm relationship but no financial dependency is in a harder position.

Can an Ex-Spouse or Former De Facto Partner Contest a Will in NSW?

They can, but the burden they face is higher than a current spouse. The court will look at whether the relationship produced children, whether property was divided on separation, and whether there was ongoing financial reliance after the relationship ended. A former spouse who received a full property settlement decades ago and had no subsequent financial connection to the deceased will find it difficult to establish an inadequate provision.

What Are the Grounds for Contesting a Will in NSW?

There are two distinct categories.

Inadequate Provision: Family Provision Claims

This is the most common basis. The will is valid, but what you received, or were left out of, is not adequate for your proper maintenance, education, or advancement in life. The court has broad discretion to make a family provision order varying the distribution of the estate.

In assessing the claim, the Supreme Court of NSW considers:

• The nature and length of your relationship with the deceased
• Your financial circumstances and financial needs
• Contributions you made to the deceased or the estate, whether financial, domestic, or otherwise
• The size of the estate and the claims of other beneficiaries
• Whether the deceased made any provision during their lifetime through gifts, loans, or ongoing support
• Your age, health, and capacity to earn

The court does not simply ask whether the provision was fair. It asks whether a wise and just testator, with full knowledge of the circumstances, would have made adequate provision. That framing matters. It is not a redistribution of assets according to emotional weight; it is a structured legal assessment.

Challenging Will Validity

A will can be challenged on several grounds under NSW law:

Lack of testamentary capacity. The Banks v Goodfellow test applies. The testator must have understood the nature of making a will, the extent of their estate, the claims of people who might reasonably expect to benefit, and have been free from any disorder of the mind affecting their decisions. Dementia is the most common basis for this challenge, but any condition affecting cognition at the time of signing can be relevant.

Undue influence. This requires evidence that the testator’s free will was overborne by pressure, not persuasion, not emotional appeals, but coercion. It is a high bar and frequently misunderstood. The fact that someone had influence over the deceased is not undue influence. Courts look for evidence that the testator did not act of their own volition.

Fraud or forgery. Where a will has been fabricated or a signature forged.

Failure to know and approve the contents. Where the testator signed a document without understanding what it contained, it is relevant where a person in failing health signed documents prepared by others without proper explanation.

Improper execution. A will must be signed in the presence of two witnesses who both sign in the testator’s presence. Defects in execution can render a will invalid, though courts have discretion to admit informal documents that clearly express testamentary intention. If you are at the earlier stage of making a will and want to ensure it is properly executed, getting legal advice at that point avoids many of these disputes entirely.

How Long Do You Have to Contest a Will in NSW?

Twelve months from the date of death. That is the time limit for family provision claims under the Succession Act 2006 (NSW).

It is not twelve months from when you found out about the will, or twelve months from probate. It is twelve months from death.

The court can grant an extension, but applicants need to establish sufficient cause, and the estate may have been distributed by then, which significantly complicates recovery. Waiting to see what others do, or hoping to resolve things informally, is one of the more common reasons people find themselves outside the limitation period.

For validity challenges, the timing is more flexible but there is still urgency. If probate has been granted, a caveat can still be filed, but the procedural steps change and the evidentiary threshold remains high.

Early advice matters here. Not because of sales pressure, but because the clock is running from the moment of death, not from the moment you decide to act.

What Happens When You Contest a Will: The NSW Process

The process follows a reasonably consistent path, though complexity and timing vary significantly depending on the nature of the claim, the size of the estate, and whether other parties are cooperating.

1. Initial legal advice. Establish whether you are an eligible person, whether you have reasonable grounds, and what the likely costs and timeframes look like. Most will disputes in this area settle, but you need to know your position before entering any negotiation.

2. Filing a family provision application. The application is filed in the Supreme Court of NSW. The executor or administrator is joined as a party. Evidence of your circumstances, the relationship, and the adequacy of provision is filed by affidavit.

3. Mediation. The Supreme Court of NSW actively encourages mediation before any hearing, and most matters resolve at this stage. Mediation in contested estates is typically private and confidential. Reaching an agreement here avoids the cost and exposure of a hearing.

4. Hearing. Where mediation does not resolve the matter, the application proceeds to a hearing before a judge of the Supreme Court. The court assesses all evidence and makes a family provision order if satisfied that the claim is made out.

Most contested estates in NSW that reach mediation resolve within 12 to 18 months of the application being filed. Matters that proceed to hearing take longer, and costs increase substantially.

What About Notional Estate Orders?

This is an aspect of NSW law that operates differently from other states, and it is worth understanding.

Where the estate itself is small, or where assets have been transferred out of the estate before death through a family trust, a binding death benefit nomination on superannuation, or a joint tenancy arrangement, the Supreme Court of NSW has power to make a notional estate order. This allows the court to claw certain assets back into the notional estate for the purposes of a family provision claim.

Not all transferred assets are available for notional estate orders. Specific rules apply about when the transfer occurred and what form it took. But the practical effect is that a deliberate reduction of the estate to defeat a family provision claim does not necessarily succeed.

Who Pays the Legal Costs in a Will Dispute?

Costs in NSW will disputes do not automatically follow the event the way they do in some other proceedings. The court has discretion.

In practice, where an applicant succeeds in a family provision claim, costs are often ordered from the estate. Where an applicant fails, they may bear their own costs and sometimes the respondent’s. Where a validity challenge fails and is brought without reasonable grounds, the applicant faces adverse cost orders.

This is a real consideration. The size of the estate relative to the likely legal costs is a factor the court considers, and it is a factor any sensible claimant should weigh before filing.

Does a Spouse Automatically Inherit Everything in NSW?

Not always, and this is one of the most common assumptions that causes problems in estate administration.

Under the intestacy rules in NSW (Succession Act 2006), if the deceased had no valid will and leaves a spouse but no children from a prior relationship, the spouse does inherit the entire estate. But where the deceased leaves children from a previous relationship, the distribution is different. The spouse receives the personal effects, a statutory legacy (currently indexed to reflect inflation, with the figure most recently cited in practice sitting at around $451,909), and half of the residual estate. The children receive the other half, divided equally.

This matters for will disputes too. A spouse who assumed they would receive everything may find, on intestacy, that they are sharing with children from the deceased’s earlier relationship. And a spouse left less than the intestacy entitlement under a will may have strong grounds for a family provision claim. Our guide on what happens if you die without a will in Sydney NSW, covers the intestacy distribution rules in full.

When a Parent Leaves Everything to One Child

It happens, and it is one of the more difficult dynamics in contested estates. A parent leaves their entire estate to the eldest, or to the child who provided care, leaving other children with nothing.

This does not automatically mean the will is invalid. A testator has the legal right to leave their estate however they choose. But an eligible person, whether another child, a grandchild who was dependent, or a former de facto, may have grounds for a family provision claim if the distribution fails to make adequate provision for them.

The fact that a sibling was favoured and you were not is not enough by itself. The court assesses your need, your relationship with the deceased, and the adequacy of what you received, not whether the distribution was even or felt fair.

One More Thing Worth Knowing

The existence of a valid will does not foreclose a family provision claim. And the absence of a will, an intestate estate, does not remove the right to bring one either. The Succession Act 2006 (NSW) allows family provision applications against both testate and intestate estates.

If the intestacy distribution does not make adequate provision for you, the same framework applies. The eligible person categories, the 12-month time limit, the Supreme Court of NSW process, and the court’s discretion to make a family provision order all operate the same way whether or not a will exists.

What the will determines is the starting point. The court decides whether that starting point is adequate.

This content is general information only and does not constitute legal advice. Every matter turns on its own facts, and the law can change. For advice specific to your circumstances, contact us to speak with a Sydney family lawyer who knows contested estate law and the NSW Supreme Court process.