How to Contest a Will in NSW

In New South Wales, there are two ways to contest a will. The first is a family provision claim, which asks the Supreme Court of NSW to order more for you from the estate. The will stays in place. The second is a challenge to the will’s validity, which argues the document shouldn’t count as a legal will at all. For a family provision claim, the deadline is generally 12 months from the date of death. The estate can sometimes be paid out before then.
This guide covers:

• which route fits your situation
• who is eligible to claim and how the Court decides
• the deadlines
• the court process and who pays the legal costs

Can I contest a will just because I was left out or left too little?
Yes, if you’re an “eligible person.” A family provision claim doesn’t argue that anything was wrong with the will. It argues the will didn’t make adequate provision for you, and asks the Court to change that.
That’s one of two routes, and the difference between them shapes everything that follows:

• Family provision claim under Succession Act 2006 (NSW) ch 3. The will stands. If you succeed, the Court orders whatever provision for you out of the estate it “thinks ought to be made” (s 59(2)).
• Validity challenge. You argue the will itself shouldn’t take effect. Examples are that the person who made it lacked testamentary capacity, or that it wasn’t signed and witnessed properly. The Court’s statistics record these as “contentious probate” matters, meaning disputes over the validity of a will or grant.

Family provision is the more common route by a wide margin. In 2024 the Supreme Court of NSW recorded 996 family provision filings and 464 contentious probate filings (Supreme Court of NSW, 2024 Annual Review). That’s roughly two in every three contested estate cases.

Which route fits?

• You were left out, or left too little given your circumstances: family provision.
• You doubt the will is valid, for example because of the person’s capacity, undue influence, or how it was signed and witnessed: validity challenge.
• Both apply: the two can run in the same case (Practice Note SC Eq 7 (17 June 2024)).

Am I eligible to contest a will in NSW?

To make a family provision claim, you must be an “eligible person” under s 57 of the Succession Act. A spouse, de facto partner or child of the person who died qualifies outright. Former spouses, dependants and people in a close personal relationship must also show the claim is warranted.

The six categories in s 57(1) are:

• A spouse of the person at the time they died.
• A de facto partner at the time of death. Under the Interpretation Act 1987 (NSW) s 21C, that means two people who “have a relationship as a couple living together” and aren’t married to each other or related by family.
• A child of the person who died. Section 57(1)(c) says simply “a child of the deceased person” and sets no age limit.
• A former spouse.
• A dependant. This is someone who was at any time wholly or partly dependent on the person who died, and who is either their grandchild or was, then or at any other time, a member of their household.
• Someone in a “close personal relationship” with them at death. That means two adults, related or not, living together, where one or each provides the other with domestic support and personal care (s 3(3)). It doesn’t count if the care was provided for pay, or on behalf of another person or an organisation such as a government agency or charity (s 3(4)).

Categories 4 to 6 carry an extra hurdle. The Court must be satisfied that, “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application” (s 59(1)(b)). This extra step doesn’t apply to spouses, de facto partners or children (Noble v Durrant [2023] NSWSC 513; Khadarou v Antarakis [2022] NSWCA 99).

Grandchildren and stepchildren have no category of their own. They generally qualify only through category 5: dependency plus being a grandchild or a household member. That route can extend beyond immediate family. In Noble v Durrant, nieces relied on household membership plus dependency.

Eligibility is only the first condition. The Court can’t make an order unless all three conditions in s 59(1) are met (Noble v Durrant):

• you’re eligible;
• if you’re in categories 4 to 6, factors warrant the claim; and
• adequate provision wasn’t made for you.

How does the court decide whether I was left enough?

The Court asks whether “adequate provision for the proper maintenance, education or advancement in life” of you has been made by the will, the intestacy rules, or both (s 59(1)(c)). The Court judges this at the time it hears your claim, not as at the date of death.

Section 60(2) lists 16 matters the Court may consider. The NSW Court of Appeal has described them as “a multifactorial list” (Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37]). They fall into five groups:

• Your relationship with the person who died. This covers its nature and how long it lasted (s 60(2)(a)), and any obligations they owed to you, other claimants or beneficiaries (s 60(2)(b)).
• Your financial position. This covers:
  • your resources, including earning capacity, and your present and future needs (d);
  • the finances of anyone you’re cohabiting with (e);
  • any disability (f) and your age (g);
  • whether the person who died was supporting you (k);
  • whether anyone else is legally obliged to support you (l).
• The estate and competing claims. This covers the nature and extent of the estate, including notional estate, and any liabilities or charges it’s subject to (c). It also covers the needs of beneficiaries and other claimants (d), (f).
• What you’ve received or contributed. This covers provision already made for you during their life or from their estate (i). It also covers contributions you made, financial or otherwise, to the estate or to their welfare or their family’s, for which you weren’t adequately compensated (h).
• Testamentary intentions and conduct. This covers:
  • evidence of their testamentary intentions, including statements they made (j);
  • your character and conduct before and after the death (m);
  • other people’s conduct (n);
  • any relevant Aboriginal or Torres Strait Islander customary law (o);
  • anything else the Court considers relevant (p).

The test in s 59(1)(c) is whether adequate provision was made for you. The s 60 matters include your circumstances, the estate, and other people’s claims. Evidence of the person’s testamentary intentions, including statements they made, is one of the listed matters (s 60(2)(j)).

Expect to put your own finances on the table. The Court’s affidavit form asks you about matters including gifts and sales of $1,000 or more, and property and share dealings, in the last three years (Practice Note SC Eq 7, Annexure 1).

Can I have the will overturned if they weren’t of sound mind or were pressured into it?

Possibly, through a validity challenge. Instead of asking for more from the estate, you argue the document shouldn’t take effect as the will at all.

The grounds are:

• Lack of testamentary capacity. Testamentary capacity is governed by case law. The leading case is Banks v Goodfellow (1870) LR 5 QB 549. The NSW Court of Appeal applied it in Carr v Homersham [2018] NSWCA 65. See also Bull v Fulton (1942) 66 CLR 295.
• Undue influence.
• Lack of knowledge and approval.
• Not properly executed. This means the will wasn’t signed and witnessed the way the Succession Act requires.

Under s 6(1), a valid will must meet three requirements:

• It must be in writing and signed by the will-maker, or by someone else in their presence and at their direction.
• The signature must be made or acknowledged in front of two or more witnesses present at the same time.
• At least two of those witnesses must attest and sign the will in the will-maker’s presence, though not necessarily in each other’s.

The signature doesn’t have to be at the bottom (s 6(2)), and the will doesn’t need an attestation clause (s 6(3)).

A signing defect doesn’t automatically sink a will. Under s 8, the Court can treat an improperly executed document as the will if it’s satisfied the person intended it to be their will. In deciding that, it can consider evidence about how the document was executed and any evidence of the person’s testamentary intentions, including statements they made. Courts ask three questions (Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56], applied in Estate of Johnston [2010] NSWSC 382):

• Is there a document?
• Does it embody the person’s testamentary intention?
• Did the person intend it, without more, to operate as their will?

Before choosing this route, weigh two things:

• Costs: the costs risk is different from a family provision claim, as explained below.
• What replaces it: ask a solicitor what would apply instead if this will fell, and whether that would leave you better off.

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

For a family provision claim, you have 12 months from the date of death (s 58(2)). The clock starts at death, not when probate is granted. It stops on the day your claim is filed in the Court’s registry (s 58(3)).

A late claim is possible, but only if “the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent” (s 58(2)). The consent option was added in 2018 by the Justice Legislation Amendment Act 2018 (NSW). Any order extending time, including by consent, requires the Registrar to consult the judge managing the list (Practice Note SC Eq 7).

Judges look for “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period” (Moore v Randall [2012] NSWSC 184 at [39]). They weigh factors including the following (Benz v Armstrong [2022] NSWSC 534):

• how strong your claim is;
• your explanation for the delay;
• prejudice caused by the delay, not mere readjustment (Cetojevic v Cetojevic [2006] NSWSC 431, via Thomas v Pickering [2011] NSWSC 572);
• how the parties have conducted themselves.

Extensions have been refused, for example in Wise v Barry [2018] NSWSC 1726. An extension was also refused in Nibbe v Wong [2025] NSWSC 685, where the claim was nearly two years late.

The 12-month limit in s 58(2) applies to family provision claims only. Don’t treat it as your guide for a validity challenge. If you have concerns about the will itself, raise them with a solicitor straight away.

What happens when you contest a will? Will it go to court?

A family provision claim is filed in the Supreme Court of NSW. Unless the Court orders otherwise for special reasons, it must send the claim to mediation before deciding it. Disputes can settle at that stage without a final hearing.

• File a summons. This is the document that starts the case. It’s filed in the Probate and Family Provision List of the Court’s Equity Division. It must state the date of death (Practice Note SC Eq 7).
• File and serve three documents with it:
  • your affidavit, adapted from the Court’s form (Annexure 1 to Practice Note SC Eq 7);
  • a notice of eligible persons, naming anyone who is or may be eligible to claim;
  • an affidavit estimating your legal costs up to the end of mediation.
• If you file at the last minute to beat the deadline, these can follow. They must be in no later than five working days before the first directions hearing, or at any other time the Court orders.
• Attend the first directions hearing. This is held before the Registrar in Probate no later than the first Thursday after 28 days from filing. The Registrar sets steps for exchanging information early, “so that parties may make a realistic assessment of their respective cases.” The Registrar can also direct the executor to file an affidavit about the estate.
• Go to mediation. “Unless the Court, for special reasons, otherwise orders, it must refer an application for a family provision order for mediation before it considers the application” (s 98(2)). Under Practice Note SC Eq 7:
  • mediation is run by the Court and expected to take half a day;
  • there’s no cost for the mediator or the venue;
  • you’re expected to attend in person, unless there are exceptional circumstances.
• Validity disputes are also “ordinarily” referred to mediation.
• Settle, or prepare for a hearing. If you settle, the Court can make orders on the agreed terms (s 98(3)). If you don’t, the Court sets a timetable towards a final hearing.

Mediation listings in the Probate and Family Provision List rose from 248 in 2023 to 548 in 2024. Across the whole Court, about 47% of court-annexed mediations settled in 2024 (Supreme Court of NSW, Provisional Statistics 2024). Those figures count mediation listings, and referrals made in one year can be listed the next. The figures are also provisional, and the settlement rate covers all Court matters, not just estate disputes.

Who pays the legal costs if I contest a will?

In a family provision claim, the Court can order costs, including mediation costs, to be paid out of the estate, but that’s discretionary, not automatic. In a validity challenge, there’s no costs presumption just because the will-maker caused the dispute.

For family provision, s 99(1) lets the Court order costs to be paid from the estate, from notional estate, or both, “in such manner as the Court thinks fit.” The general rule is that the court must order that costs “follow the event” unless it appears that some other order should be made (Uniform Civil Procedure Rules 2005 (NSW) r 42.1). In family provision cases, that rule operates subject to s 99. The outcome depends on the overall justice of the case (Salmon v Osmond [2015] NSWCA 42 at [170]–[173]).

The Court also watches proportionality. It expects that an estate’s resources and its own “will not be used in a manner that is out of proportion to the size of the estate or any provision that may be made.” It can cap recoverable costs, including where the net distributable value of the estate (excluding costs of the case) is less than $1,000,000 (Practice Note SC Eq 7). If your costs include an uplift factor, or your fee agreement provides for one, your opening costs estimate should identify it.

Validity challenges are different. Practice Note SC Eq 7 states that in probate matters, no costs presumption arises “by reason only of the fact that the testator was the cause of the litigation.”

What should I do right now?

• Work out your deadline. Take the date of death, add 12 months, and write it down.
• Check that you’re eligible. Find your category in s 57(1), and whether you’ll also need to show factors warranting the claim.
• Get advice on which route fits, and bring what you know. That means what you know about the estate, your own finances, and your history with the person who died. If you have validity concerns, also bring what you know about their health and who was involved when the will was made.

MLC Lawyers’ wills and estates practice includes contesting wills and family provision claims, probate applications and estate administration. We have offices in Cabramatta and Norwest and act for clients across South West and North West Sydney, interstate and internationally.

Senior Solicitor Martin Collins was admitted as a solicitor in NSW in 1985, has practised in areas including commercial litigation, and holds a Master of Laws (Applied Law) majoring in Wills and Estates. He focuses on estate planning for families. Principal Solicitor Lina Tjoeng, admitted in 2006, works with our team and with barristers on complex cases. Established in 2008, the firm was the 2022 winner of the Australian Small Business Champion Awards for Legal Services.

You’ll file an affidavit, and you’re expected at mediation in person, so you need to understand every step. Our solicitors speak Khmer and Chinese, and Lina Tjoeng’s multilingual service includes interpreters for other languages. Contact our Cabramatta or Norwest office through mlclawyers.net, and have the date of death with you.

This article is general information about New South Wales law as at November 2026. It is not legal advice and does not create a solicitor-client relationship with MLC Lawyers. For advice about your situation, speak with a solicitor.