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.
| Category (s 57) | Who this covers |
| s 57(1)(a) | A person who was the spouse of the deceased at the time of death |
| s 57(1)(b) | A person living with the deceased in a de facto relationship at the time of death |
| s 57(1)(c) | A child of the deceased |
| s 57(1)(d) | A former spouse of the deceased |
| s 57(1)(e) | A person who was at any particular time wholly or partly dependent on the deceased, and who is either a grandchild or was at some time a member of the deceased’s household |
| s 57(1)(f) | A person living with the deceased in a close personal relationship at the time of death |
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.
