Felicio Law Firm

Most people who ask about contesting a Will are not trying to overturn a document. They are trying to work out whether the law will recognise that they were left out, or left too little. In New South Wales those are two separate legal paths, with different tests and very different deadlines. This article explains the second and far more common path — the family provision claim — including who is entitled to bring one, what the Court must be satisfied of, and the twelve-month clock that quietly runs from the date of death.

Two different things people call “contesting a Will”

The phrase gets used loosely, and the distinction matters.

Challenging the validity of a Will is an argument that the document should not operate at all. The grounds are things like a lack of testamentary capacity, undue influence, fraud, or a failure to meet the formal signing and witnessing requirements. If the challenge succeeds, an earlier Will takes effect, or the estate is distributed under the intestacy rules. We have written separately about the five essential elements of a valid Will, which is the other side of the same coin.

A family provision claim accepts that the Will is valid. It says something narrower: that the deceased did not make adequate provision for the proper maintenance, education or advancement in life of a particular person, and that the Court should adjust the distribution to fix that. This is the claim brought under Chapter 3 of the Succession Act 2006 (NSW), and it is what most disappointed beneficiaries are actually describing.

Family provision claims are heard in the Supreme Court of New South Wales. They apply to estates governed by NSW law — a different regime operates in Queensland and each other state.

Not everyone can bring a claim

This is the first hurdle, and it stops a good number of would-be claimants. Only an eligible person, as that term is defined in section 57 of the Act, may apply for a family provision order.

Two points are worth drawing out. The definition of “child” is extended by section 57(2) to cover children of a de facto or domestic relationship in a range of circumstances, including adopted children and children for whose long-term welfare both parties held parental responsibility. And grandchildren are not eligible simply because they are grandchildren. A grandchild must also establish dependency on the deceased at some particular time — a requirement we have looked at in more detail in our post on dependency claims by grandchildren.

Stepchildren, nieces, nephews, close friends and carers are not listed as categories in their own right. Some of them will still qualify — but only through the household-and-dependency route in s 57(1)(e), or the close personal relationship route in s 57(1)(f), and only if the facts genuinely support it.

The twelve-month clock

Section 58(2) sets the deadline. An application must be made not later than 12 months after the date of the death of the deceased person, unless the Court orders otherwise on sufficient cause being shown, or the parties to the proceedings consent to the application being made out of time.

Read that again, because two details catch people out.

The clock runs from death, not from the grant of probate, not from the reading of the Will, and not from the day someone finally receives a copy of it. Waiting for the estate to be administered before taking advice is a common and costly instinct.

And the extension is not automatic. A late applicant must persuade the Court there is sufficient cause — or obtain the consent of the other parties, who will rarely have any reason to give it. Delay also creates a practical problem beyond the section: once an executor has properly distributed the estate, there may be nothing left to make an order against.

What the Court has to be satisfied of

Eligibility gets a claimant through the door. Section 59 sets out what must then be established.

• The applicant is an eligible person.
• If the applicant is eligible only by reason of paragraph (d), (e) or (f) of the s 57 definition — that is, a former spouse, a dependent household member or grandchild, or a person in a close personal relationship — there must also be factors which warrant the making of the application, having regard to all the circumstances of the case, past or present. Spouses, de facto partners and children do not have to clear this additional hurdle.
• At the time the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made — whether by the Will, by the intestacy rules, or by both.

If those matters are established, section 59(2) gives the Court a discretion to order such provision out of the estate as it thinks ought to be made, having regard to the facts known to the Court at the time the order is made.

That discretion is guided by section 60, which lists the matters the Court may consider. They range widely: the nature and duration of the relationship, the financial resources and needs of the applicant and of any other beneficiary, the applicant’s age, health and earning capacity, any contribution the applicant made to the deceased’s property or welfare, any provision the deceased made during their lifetime, and the character and conduct of the applicant. There is no formula and no entitlement to a percentage. Two siblings with identical shares under a Will can attract very different outcomes on the same estate.

The notional estate question

New South Wales is unusual. In most Australian states, a family provision order can only be made against property the deceased actually owned when they died. Chapter 3 of the Act also allows the Court, in defined circumstances, to designate certain property as notional estate — property that passed outside the Will, or was disposed of before death, and to make orders against it.

This is why the common assumption that assets can simply be moved out of an estate to defeat a claim is unreliable in this state. It is also technical territory, and whether particular property can be designated depends closely on the timing and nature of the transaction. It is not something to assess from a general article.

Four assumptions that cause trouble

Certain beliefs come up again and again, and each of them can cost a family months.

“I was promised something, so I have a claim.” A promise made during the deceased’s lifetime is not a family provision claim. It may support a different action altogether, but it does not create eligibility under section 57.

“The Will is unfair, so a court will fix it.” The Court is not conducting a review of whether the deceased was a fair-minded parent or partner. The question is whether adequate provision was made for the applicant’s proper maintenance, education or advancement in life, assessed against the matters in section 60.

“I need to wait until probate is granted.” The twelve-month limit in section 58(2) runs from death. Probate is irrelevant to it.

“Everything will be sorted out among ourselves.” Family agreements about an estate are common and often sensible, but an informal understanding does not stop the limitation period, and it does not bind an executor who later takes a different view.

What the process actually looks like

Family provision matters are litigation, but they very rarely finish in a hearing.

• Take advice early. The twelve-month limit and the evidentiary work both reward an early start.
• Assemble the financial picture. The claim turns substantially on need — income, assets, liabilities, health, dependants, housing. Vague assertions of unfairness do not carry a claim.
• Understand the estate. Its size, its liquidity, and who else has a call on it. A modest estate can be consumed entirely by a contested hearing.
• Expect mediation. The Court refers most family provision proceedings to mediation, and the majority resolve there.
• Weigh the costs risk honestly. Costs are in the Court’s discretion. An unsuccessful applicant can be ordered to pay the estate’s costs. This is not a free option.

Executors face the mirror image of the same problem. An executor who distributes an estate while a claim is foreseeable can find themselves personally exposed, which is one of several reasons executors should take advice before releasing funds. Where an executor is not acting properly, removing them is a separate remedy again.

The Bottom Line

Contesting a Will in New South Wales is narrower than most people assume and more time-pressured than they expect. You must fall inside the section 57 categories, you must generally act within twelve months of the death, and you must show that adequate provision has not been made for your proper maintenance, education or advancement in life. Some claimants must also show factors warranting the application. None of that is decided on how unfair the Will feels. It is decided on evidence about relationships, contributions and need. The earlier that evidence is gathered, the better the position — for a claimant and for an executor alike.

If you have questions about contesting a Will, about defending an estate against a claim, or about structuring your own Will to reduce the risk of one, don’t hesitate to get in touch with one of our friendly Estate Planning Lawyers Central Coast. You can contact our Erina office here. We can also help if your circumstances are those of a surviving spouse, which we cover in more detail in our post on inadequate provision for a spouse.

Most people who come to see us about a Will end up asking a related question: what happens if I don’t die, but I lose the ability to make decisions for myself? In New South Wales, the law answers that question with two separate documents — an enduring power of attorney and an enduring guardianship appointment. They sound similar. They are not the same thing, and relying on only one of them can leave a real gap in your planning.

Two Documents, Two Different Jobs

The confusion is understandable, because both documents do the same basic job in principle: they let you choose, in advance, who will make decisions for you if you later can’t make them yourself. Where they differ is in what kind of decisions each one covers.

An enduring power of attorney — created under the Powers of Attorney Act 2003 (NSW) — deals with your financial and property affairs. It lets your chosen attorney pay your bills, manage your bank accounts, sell property on your behalf, or deal with your superannuation, once the power comes into effect.

An enduring guardianship appointment — made under the Guardianship Act 1987 (NSW) — deals with your personal, health, and lifestyle decisions. It lets your chosen guardian decide things like where you live, what medical or dental treatment you receive, and what personal services or care you access, if you lose the capacity to decide these things yourself.

Put simply: the attorney looks after your money. The guardian looks after you.

What an Enduring Power of Attorney Covers

A general power of attorney ends the moment you lose mental capacity — which somewhat defeats the purpose if the whole point is to have someone step in during exactly that circumstance. An enduring power of attorney is different. Under section 19 of the Powers of Attorney Act 2003 (NSW), it is specifically designed to continue operating even after you lose capacity, provided it was validly created while you still had it.

To be valid, the instrument must be witnessed by a prescribed witness — typically a solicitor, licensed conveyancer, or a registrar of the Local Court — who certifies that they explained the effect of the document and that you appeared to understand it. Your attorney also has to formally accept the appointment before it can operate.

An attorney appointed this way can typically:

• Manage your bank accounts and pay your ongoing expenses
• Buy, sell, or lease property on your behalf
• Deal with investments, shares, or superannuation entitlements
• Sign contracts and legal documents relating to your financial affairs

What an attorney cannot do — regardless of how broadly the document is drafted — is make personal or health decisions for you. That’s where an enduring guardian comes in.

What an Enduring Guardian Covers

Enduring guardianship appointments are made under the Guardianship Act 1987 (NSW), which under section 6 allows an adult with capacity to appoint one or more people to make personal decisions on their behalf if they later become “a person in need of a guardian” under the Act. Like an enduring power of attorney, the appointment must be properly witnessed, and it only takes effect once you have actually lost the relevant capacity — it cannot be used while you are still capable of deciding for yourself.

An enduring guardian can typically be authorised to make decisions about:

• Where you live — including decisions about moving into residential aged care
• What health care, medical, or dental treatment you receive
• What personal services and support you access, such as home care or disability services
• Consenting to medical or dental treatment on your behalf, within the limits set by the Act

One limit is worth stating clearly: an enduring guardian cannot make financial decisions, and if you object to a particular medical treatment, your guardian generally cannot override that objection.

Comparison at a Glance

Key Requirements for Both Appointments

• You must have decision-making capacity at the time you sign. Neither document can be made on your behalf once capacity is already lost.
• You must be an adult. Both appointments require the person making them to be over 18.
• The appointment must be properly witnessed by a prescribed or eligible witness, who certifies that the effect of the document was explained to you and that you appeared to understand it.
• Your chosen attorney or guardian must formally accept the role before it can take effect.
• You can appoint more than one person, and specify whether they must act jointly, severally, or jointly and severally.

A Common Misconception

The most common misunderstanding we see is people assuming that appointing an attorney covers everything — finances and health decisions alike. It doesn’t. We also regularly see the reverse assumption: that a Will covers what happens if you lose capacity while still alive. It doesn’t either — a Will only takes effect after death. An enduring power of attorney and an enduring guardianship appointment are the tools that operate during your lifetime, in the gap a Will can’t reach.

Both documents can also be reviewed by the NSW Civil and Administrative Tribunal (NCAT) — the Guardianship Division specifically has the power to confirm, vary, or revoke an enduring guardianship appointment where there is a genuine concern about how it’s operating, and a comparable review pathway exists for powers of attorney.

Practical First Steps

• Consider both documents together, not just one. They address entirely different risks, and having only one leaves a genuine gap.
• Choose people you trust completely, since both roles carry significant authority over your affairs with limited day-to-day oversight.
• Be specific about functions and limitations — you can tailor an enduring guardian’s authority to particular categories of decision if you don’t want to grant blanket authority.
• Keep the originals somewhere accessible, and give copies to your attorney, guardian, doctor, and — ideally — whoever holds your Will.
• Review both appointments periodically, particularly after a significant life change such as separation, since marriage can automatically revoke an earlier enduring guardianship appointment.

The Bottom Line

An enduring power of attorney and an enduring guardianship appointment do different jobs, and neither one substitutes for the other. Getting both in place while you have capacity means the people you trust — rather than a tribunal, or nobody at all — are the ones making decisions on your behalf if you ever need them to.

If you’re putting an estate plan together and want to make sure both your financial and personal affairs are properly covered, don’t hesitate to get in touch with one of our friendly Estate Planning Lawyers Central Coast. We can also help if you’re dealing with questions around capacity and these appointments, or if you need to review or challenge an existing power of attorney at NCAT. Contact us to arrange a time to talk through your situation.

If you’re planning a Will or already have one, making sure it meets every essential element of a valid Will in NSW could be the most important legal step you ever take. Your family’s security, your life’s work, and your final wishes all depend on whether your Will satisfies specific legal requirements under New South Wales’s Succession Act 2006. Get them right, and everything you’ve built goes exactly where you want it to go. Miss even one, and the consequences can be heartbreaking — and very costly.

We know that’s a lot to take in. But here’s the reassuring part: these five elements are entirely achievable with the right guidance. At Felicio Law Firm, helping NSW families protect what matters most is what we do every single day.

But first, a reality check. Research by NSW Trustee and Guardian in 2023 found that 60% of NSW residents do not have a valid or legal Will in place. On top of that, family provision claims in NSW — where someone challenges a Will or an estate — numbered 1,461 in 2024 (ABC, 16 Sep 2025). And with an estimated $3.5 trillion set to transfer between Australian generations over the next 20 years, the stakes have never been higher for every Australian family.

So let’s walk through what the law actually requires.

The Legal Framework: NSW’s Succession Act 2006

In New South Wales, wills are governed by the Succession Act 2006 (NSW) (the “Act”). This is the legislation that sets out every requirement a will must satisfy to be legally valid. It’s the rulebook, and the NSW Supreme Court enforces it strictly.

When a Will is declared invalid, it’s treated as though it never existed. In that situation, your estate may be distributed according to the intestacy rules — a rigid legal formula that has no regard for your actual wishes, your relationships, or your circumstances. That outcome is entirely avoidable. Here are 5 essential elements you need to know.

Element 1: The Testator Must Be of Legal Age

Under the Act, a person making the Will (i.e., the testator) must generally be at least 18 years of age.

However, there are limited exceptions.

Under section 16 of the Act, a person under 18 (a “minor”) can make a formally valid Will with Supreme Court authorisation. However, the Court will only approve if it is satisfied the minor understands that:

• the Will’s nature and property disposed;
• it reflects their true intentions; and
• the authorisation is reasonable in all circumstances.

Element 2: The Testator Must Have Testamentary Capacity

The testator must have testamentary capacity, or the mental ability to understand what they are doing, why they are doing it, and what effect it will have.

The legal test for testamentary capacity in Australian courts still comes from the landmark English case Banks v Goodfellow (1870), which NSW courts have consistently applied and affirmed.

Under this test, the testator must:

• understand what a Will is and what it does;
• have a reasonable understanding of the property they own and are giving away;
• know who might reasonably expect to benefit — for example, a spouse, children, or other dependants; and
• not be suffering from any disorder of the mind that distorts their judgment in a way that affects how they make the Will.

This is not an all-or-nothing test. A person with dementia or a psychiatric condition may still have capacity, depending on the nature and extent of their condition and the simplicity of the Will. Courts assess capacity at the time the Will is signed — or, if instructions were given earlier, at the time those instructions were provided.

Why does this element generate so much litigation? Because it is often raised after someone has died and can no longer speak for themselves. The evidence is retrospective — medical records, solicitor file notes, testimony from family and carers. When capacity is successfully challenged, the Will is void. That is why experienced estate planning solicitors document their assessment of a testator’s capacity carefully, and why a medical assessment is sometimes recommended.

We understand this is a sensitive area, especially when a parent or loved one’s health is declining. At Felicio Law Firm, we approach these situations with genuine compassion and care.

Element 3: The Will Must Be Made Freely and Voluntarily

A Will must be the genuine expression of the testator’s own wishes — made without undue influence, coercion, or fraud from any other person.

This doesn’t mean families can’t talk, suggest, or express preferences. Of course they can. Life is full of those conversations. What the law prohibits is pressure so overbearing that it substitutes someone else’s decision for the testator’s own. NSW courts draw a clear line between legitimate persuasion and coercion that overrides the testator’s independent judgment.

Undue influence tends to surface in situations where a vulnerable or elderly testator is heavily dependent on a carer who also stands to benefit, or where a Will is dramatically changed shortly before death without obvious reason. It also arises where the testator has been isolated from family and other trusted people.

But proving undue influence is notoriously difficult. The burden falls on the person challenging the Will, and the courts require solid evidence. But when it is proven, the affected gift — or the entire Will — can be set aside.

Fraudulent misrepresentation is a close cousin. If someone feeds false information to a testator — for example, telling them that a child has abandoned them when they haven’t — and the testator changes their will as a result, the courts can strike out that part of the Will. The testator’s true wishes deserve protection, and NSW law provides it.

Element 4: The Will Must Be in Writing and Properly Executed

This is the element that trips up the most homemade or Will kits. It is also the one where small mistakes can have enormous consequences.

Section 6 of the Succession Act 2006 (NSW) sets out clear formal requirements. For a will to be validly executed:

• it must be in writing — handwritten, typed, or printed;
• it must be signed by the testator, or by someone else in the testator’s presence and at their direction if the testator cannot physically sign;
• the signature must be made or acknowledged by the testator in the simultaneous presence of at least two witnesses; and
• both witnesses must sign the Will in the testator’s presence.

Every single step is mandatory. Courts have seen Wills fail because one witness stepped out of the room before the testator finished signing. Others have been challenged because the testator and witnesses signed on different days. These are not technicalities — they are the guardrails that prevent fraud and ensure the document is authentic.

One point deserves particular attention.

Under Section 10 of the Act, a gift to a witness — or to any person claiming under a witness — is generally void, even if the rest of the Will remains valid. However, this rule does not apply where at least two other witnesses are not beneficiaries, where all persons who would benefit from the avoidance of the gift consent in writing, or where the Court is satisfied the gift was made freely and with the testator’s knowledge and approval.

This is why witnesses should always be independent adults who receive nothing under the Will.

Element 5: The Will Must Reflect a Genuine Testamentary Intention

The fifth element is perhaps the most fundamental: the document must actually be intended to operate as a Will.

This means the testator must genuinely intend, at the time of making the document, that it will take effect as the legal disposal of their property upon their death. A letter written to a family member, a note in a diary, or a text message might express wishes — but they are not automatically a Will. Whether they qualify depends entirely on intent, and that question can only be resolved by a court.

Beyond intention, a well-drafted will needs certainty. Beneficiaries must be identifiable. Gifts must be described clearly enough to be administered. And while appointing an executor is not strictly a requirement for validity under the Act, having no executor creates real and entirely avoidable practical problems.

Vague language is a gift to litigators. When a Will says “to my children equally” but the testator had children from two different relationships — and only meant one set — the courts must interpret the Will. When “my house” refers to one of several properties, the ambiguity must be resolved. These disputes are costly, slow, and damaging to family relationships. Precise drafting, guided by an experienced Estate Planning Lawyer, prevents them before they begin.

What Happens if a Will is Invalid?

If a Will fails to satisfy any one of these five elements and is declared invalid, NSW’s intestacy rules under the Act apply. The estate is distributed according to a fixed legal formula, one that has nothing to do with your actual wishes.

The formula prioritises a surviving spouse or de facto partner, then children, then more distant relatives in a set order. If the deceased had children from a prior relationship, the distribution can become complicated and contested.

A de facto partner is only recognised under the intestacy rules if the relationship lasted at least two years or produced a child. A partner who does not meet this threshold receives nothing at all under the intestacy rules, regardless of how committed or long-standing the relationship appeared to be.

Also, friends, charities, and others you may have wanted to provide for receive nothing.

That’s why a valid Will, professionally prepared and kept up to date, is one of the most important things you can do for the people you love.

Protect Your Legacy

You have worked hard to build your life in NSW. Whether it’s your home, your business, your savings, or the relationship you want to protect — a valid Will is the foundation of all of it.

At Felicio Law Firm, our friendly team have been fostering relationships for a lifetime, providing compassionate, professional, and dedicated legal solutions to individuals, families, and small businesses across NSW. We offer high-value, personalised service that puts you first, and we take the time to get your estate planning right.

We can help you with your Will, powers of attorney, enduring guardian appointments, and a complete estate plan tailored to your circumstances. Expert legal solutions don’t have to be complicated or out of reach.

If you’re thinking about making or updating your Will, or if you’ve been putting it off because life got busy, please don’t wait any longer. Your family deserves that peace of mind.

Talk to one of our friendly team today.

If you’re 18 or older, you’re not too young to write a Will in New South Wales.

Also, if you own assets, have superannuation, or care for dependants, it’s already the right time to make a Will.

Waiting could leave loved ones grappling with legal entanglements and financial distress. Real-life examples reported by major news outlets show just how common and costly this can be.

In one case, the sudden death of a 32-year-old man without a Will or enduring power of attorney left his family facing a five-year legal ordeal, involving superannuation, cryptocurrency, and even the care of pets, as highlighted by ABC News on 3 July 2024.

Similarly, the surprising death of One Direction star Liam Payne in October 2024 at just 31, without a Will, left a £24.3 million estate to be distributed according to government rules. The administration of this estate fell to his former partner and a lawyer.

Why Young People Should Think About Estate Planning

The idea that you need to be older or wealthy before you make a Will is a common misconception—and a dangerous one. Under NSW law, if you pass away without a valid Will, your estate is dealt with under intestacy rules. That means government legislation, not your personal wishes, decides how your assets are distributed. For grieving families, this process can drag on for months, creating stress, delays, and unnecessary costs.

Even if you don’t think you own much, most young adults in NSW have more to their name than they realise. Consider:

• Superannuation funds (often with insurance benefits included)
• Equity in property, even with a mortgage
• Bank accounts, shares, or managed funds
• Vehicles, electronics, and jewellery
• Digital assets, such as cryptocurrency, online businesses, or valuable social media accounts

Superannuation alone can be a major asset. Without proper death benefit nominations, the trustee decides who receives it, often after lengthy investigations. This can delay financial support for the people who need it most.

Estate planning lawyers like ours often advise young adults to consider not just a Will but also enduring powers of attorney and advance health directives. These documents ensure someone you trust can take charge of your financial, legal, or medical affairs if you’re no longer able to.

Legal requirements for a valid Will in NSW

• Minimum age: You must be 18 or older for your Will to be legally effective in NSW.
• Testamentary capacity: You must have the mental ability to understand the nature of the document, its consequences, and how you want your estate distributed.
• Formal Requirements: Under Section 6 of the Succession Act 2006 (NSW) (the Act), a Will must meet the following conditions:
  • Be written down.
  • Be signed by the person making the Will (called the testator), or someone else signing it in their presence and at their direction.
  • The testator must sign or confirm their signature while at least two witnesses watch together.
  • At least two of those witnesses must then sign the Will while the testator watches (the witnesses don’t have to sign at the same time).

Limited Exceptions for Minors:

• Marriage Exception: A Will made by a minor (person under 18) is valid only if made in contemplation of a marriage that takes place, or if the minor is married.
• Court Approval: The court can approve a Will under Section 16 of the Act for minors in specific circumstances
• Statutory Wills: Sections 18 to 26 of the Act allow the Supreme Court to authorise wills for those lacking testamentary capacity, including minors

However, any person younger than 18 seeking to make a Will requires expert legal advice due to the complex requirements.

The Consequences of Not Having a Will in NSW

Consider a 27-year-old who suddenly lost their spouse, leaving a baby behind. The spouse had no Will and left a mortgaged house, superannuation, and potential compensation claims related to the death. These circumstances can create several serious consequences, including:

• Delays in accessing money: Banks, superannuation funds, and other institutions may require extra paperwork before releasing funds.
• Uncertainty about who inherits: Intestacy laws determine beneficiaries, which may not match your intentions. Spouses, children, or other family members may receive different shares than you would have wanted.
• Complicated legal processes: Estates can take many months—or even over a year—to finalise, particularly if superannuation or other assets are involved.
• Extra costs: Legal fees, administrative expenses, and interest on unpaid bills can quickly add up while your family waits for access to funds.
• Potential disputes: Family members may disagree over entitlements, leading to stress, tension, or even court proceedings.

This example shows that writing a Will is not just for the elderly or wealthy. Losing a spouse is one of the most stressful experiences anyone can face, and a Will can help reduce the financial and legal burden during this difficult time. Your valid Will would serve both as a record of your wishes and as protection for the people you care about most.

When Should You Consider Writing a Will?

You should make a Will as soon as you have assets, responsibilities, or people who rely on you. Some key moments include:

• Buying property: Even with a mortgage, your home has equity that should be properly directed. If you co-own with a partner or friend, you also need to understand how joint tenancy or tenancy in common affects your estate.
• Starting a family: Parents of young children must plan for guardianship, inheritance management, and trusts to safeguard their children’s future.
• Building investments: Shares, managed funds, and superannuation accounts can grow quickly. Without a Will, they may not end up where you’d want.
• Owning a business: Even small businesses, partnerships, or freelance ventures may have valuable assets, contracts, and intellectual property that require proper succession planning.

Common Mistakes Young Adults Make

Many people postpone estate planning because it feels overwhelming or not urgent. make mistakes such as:

• Procrastination: Assuming you’ll get to it “later”. Unfortunately, accidents and illnesses don’t wait for the right time.
• Not updating beneficiary nominations: Outdated superannuation or insurance nominations can override your current wishes.
• Forgetting digital assets: Cryptocurrencies, domain names, or online businesses may be overlooked, leaving beneficiaries without access.

To learn more about these common mistakes, read our article here.

Why You Should Get Professional Help

Online templates can seem tempting, but they don’t account for complex family situations, blended families, or assets like superannuation and business interests. Experienced Estate Planning Lawyers like ours understand NSW succession law and can help you create a Will that works alongside your nominations, insurance, and tax planning.

We will also ensure your estate plan evolves with you. As you move through life stages—buying property, marrying, having children, or building wealth—your Will and other documents need to be reviewed and updated. We’re here to help.

Start Making Your Will Today

Take note, writing a Will isn’t about being old or rich. It’s about being prepared. Every adult in NSW with assets, superannuation, or dependants should take steps to protect their loved ones. Estate planning provides peace of mind that your wishes will be respected and your family won’t face unnecessary legal or financial hardship.

Our Estate Planning Lawyers Central Coast can help you write strong, practical estate plans that truly reflect your wishes. No matter if it’s your first Will, an update to reflect new circumstances, or more complicated issues like superannuation and business structures, we’ll walk you through the process with care.

We understand that starting the conversation about estate planning can feel daunting, especially when you’re young. But taking this step now is one of the most responsible decisions you can make.

Reach out to one of our expert Central Coast Wills & Estate Planning Lawyers today for a private consultation. Gain peace of mind knowing your loved ones will be cared for, no matter what the future holds.

Removing an executor of a Will in NSW may be necessary if the person appointed to manage the estate is delaying, refusing to act, or mismanaging assets. Executors are expected to administer the estate fairly and promptly — but what happens when they don’t?

This guide explains the grounds for removal of an executor and what the process involves.

What Are the Responsibilities of an Executor in NSW?

An executor has the legal duty to handle and complete the administration of a deceased person’s estate. In NSW, their key duties include:

• Applying for probate (if required)
• Collecting and protecting estate assets
• Paying debts and taxes
• Distributing the estate to beneficiaries
• Keeping clear records and accounts

Executors must act in the best interests of the estate, avoid conflicts of interest, and follow the Will’s instructions. But if that person becomes unfit, unwilling, or unable to perform those duties, beneficiaries or other interested parties may apply to the NSW Supreme Court to have them removed.

When Can You Remove an Executor of a Will in NSW?

The Court will not remove an executor simply because of a disagreement. There must be strong legal grounds. These include:

• Misconduct or dishonesty: Using estate funds for personal purposes, failing to keep records, or acting in favour of certain beneficiaries over others are all serious breaches.
• Negligence or delay: If the estate has not been managed properly or the executor is causing unreasonable delays (e.g., not applying for probate), this may justify removal.
• Refusal to act: If an executor is ignoring their duties or refuses to respond to requests from beneficiaries, legal action may be required.
• Incapacity: Mental or physical incapacity, including illness, dementia, or absence overseas, can prevent an executor from fulfilling their obligations.
• Conflict of interest: Situations where the executor’s personal interests compromise their objectivity may also lead to removal.
• Fraud or criminal behaviour: Engaging in dishonest conduct, such as forging documents or misappropriating funds, is a clear ground for removal.

Examples of Executor Misconduct in Australia

These scenarios commonly arise in legal proceedings:

• An executor sold the deceased’s home to a relative at a heavily discounted price.
• The executor failed to pay taxes owed by the estate, resulting in penalties.
• A beneficiary repeatedly asked for updates, but the executor ignored all communication.
• The executor used estate funds to pay off their personal debts.

If you suspect similar behaviour, it may be time to explore your legal options.

What If the Executor Refuses to Distribute the Estate?

In NSW, executors are expected to distribute the estate within a “reasonable time” — typically within 12 months of death. If that doesn’t happen, and no good reason is provided, beneficiaries may take legal action. This could involve:

• Sending a formal letter requesting action
• Applying to the Court to compel distribution
• Filing an application to remove the Executor altogether

Delays caused by tax issues or property sales may be justified, but complete inaction or avoidance is not.

What’s the Legal Process to Remove an Executor in NSW?

In NSW, removing an executor requires a formal application to the Supreme Court — but only if there are solid reasons. Courts don’t take the decision lightly and will only act if the executor is clearly unfit or unable to perform their duties.

Step 1: Seek Legal Advice

Start by speaking with an experienced lawyer, such as one of our Estate Planning Lawyers Central Coast. We’ll help you assess whether your concerns meet the legal threshold for removal and advise you on the best course of action. This first step is crucial, as not every case will justify court intervention.

Step 2: Collect Supporting Evidence

To persuade the Court, you’ll need to show clear grounds for removal.

Gathering documentation early — including emails, timelines, and financial records — strengthens your case and may even prompt the executor to step aside voluntarily.

Note: If the executor hasn’t applied for probate yet, they can formally renounce the role by filing with the Court. This avoids a contested application, and another eligible party can step in without a hearing — unless there’s a dispute.

Step 3: File Your Court Application

Next, your lawyer will prepare and lodge a removal application in the Supreme Court, supported by affidavits and evidence. All relevant parties, including the executor and beneficiaries, must be formally notified.

Step 4: Attend the Court Hearing

If there’s a dispute, the case will go to a court hearing. Both sides present evidence, and the Court will decide whether the executor’s removal is in the best interests of the estate — not just the wishes of the beneficiaries.

What Happens After an Executor Is Removed?

If the Court removes an executor, it must ensure the estate is properly managed by appointing someone else to take over the role.

1. Appointing a Replacement Executor

If the Will names a substitute or alternate executor who is eligible and willing to act, the Court may authorise them to take over the administration of the estate.

Where co-executors were originally appointed, the Court may also decide that the remaining executor(s) can continue managing the estate without the need for a replacement.

2. Appointing an Administrator

If no alternate executor is named, or if all named executors are unwilling or unable to act, the Court may appoint an administrator instead. This person could be:

• A principal beneficiary
• A neutral third party (such as a solicitor or trustee company)
• The NSW Trustee & Guardian, if no suitable private individual is available

A beneficiary or even a creditor of the estate may apply to be appointed as administrator. The Court will select the person best placed to carry out the estate’s administration fairly and efficiently.

What Are the Legal Costs of Removing an Executor?

The cost varies based on complexity and whether the matter is contested. Here are some estimates:

• Simple, uncontested removal: $10,000 to $20,000
• Contested proceedings: $30,000 to $100,000 or more

Court filing fees, legal representation, and expert reports can all add to the expense. If you win the case, the costs may be reimbursed from the estate — but if you lose, you could be ordered to pay the other side’s legal fees too.

How Long Does It Take to Remove an Executor?

Again, this varies depending on the complexity of the case. Here are some typical time frames:

• Uncontested cases: Around 3–6 months
• Contested matters: 12–18 months or longer

Delays are often caused by court backlogs, evidence gathering, and negotiation between parties.

During this time, the estate may not progress, and assets may be frozen — so early action is important.

Conclusion

Removing an executor of a Will in NSW is a serious legal step — but sometimes, it’s necessary to protect the estate and ensure the deceased’s wishes are honoured. Whether due to misconduct, incapacity, delay, or outright refusal to act, the law gives beneficiaries the tools to seek justice.

Make sure you understand your rights and the risks before taking action. The process involves strong evidence, proper legal steps, and may take months or longer — especially if contested.

How Our Estate Planning Lawyers Can Help

We help clients across NSW navigate the complex process of executor removal. From initial advice to full representation in the Supreme Court, we guide you every step of the way. We’ll review your case, collect the necessary proof, and move quickly to safeguard your inheritance and peace of mind.

Concerned about how an estate is being managed or want to prevent future disputes? Contact one of our Central Coast Wills & Estate Planning Lawyers for a confidential consultation and clear advice on your next steps.