Disputes over wills and estates can be emotionally charged, especially if someone feels unfairly left out of a loved one’s will. In New South Wales, the Succession Act 2006 (NSW) provides a legal avenue for eligible individuals to contest a will by lodging a Family Provision Claim. If you’re navigating a will dispute, knowing your rights and timelines is essential. Learn more about How to Contest a Will in NSW.
Who Can Contest a Will in NSW?
Not everyone can contest a will. Only specific individuals—referred to as eligible persons under NSW law—can bring a Family Provision Claim:
- A spouse or de facto partner (including same-sex partners)
- A child of the deceased (biological, adopted, or ex-nuptial)
- A former spouse
- A person who:
- Was wholly or partly dependent on the deceased, and
- Is either a grandchild or lived in the same household
- A person with whom the deceased shared a close personal relationship at the time of death
If the court finds the will failed to provide adequate support, it may order an appropriate provision be made from the estate to assist the claimant’s maintenance, education, or advancement in life.
Time Limits: When Must You File a Claim?
There is a strict 12-month time limit from the date of death to file a Family Provision Claim in NSW. While courts may allow a late claim in exceptional cases (such as not knowing about the death), such extensions are rarely granted. For more detail, see Contesting a Will – Fraud and Incapacity.
Early legal advice is critical to protect your rights and avoid missing out.
Contesting vs Challenging a Will in NSW
These two legal actions are often confused, but they are distinct:
Contesting a Will:
This involves a Family Provision Claim based on the claim that the will does not make adequate provision for an eligible person.
Challenging a Will:
This disputes the validity of the will itself. Grounds include:
- Lack of testamentary capacity (mental capacity at the time of making the will)
- Undue influence or coercion by another person
- Fraud or forgery
- Failure to meet formal requirements (e.g., not properly signed or witnessed)
Both claims are legally complex and should be discussed with a solicitor who specialises in wills and estates law. Also explore Informal Wills: Worth the Risk? for more on legal validity.
Changing or Revoking a Will in NSW
A valid will may be updated or revoked in several ways:
To Change a Will:
- Make a new will that explicitly revokes previous ones
- Create a codicil, which is a formal amendment to an existing will, properly signed and witnessed
Planning to update your will? Download our free Will Kit to help you get started with the essentials.
To Revoke a Will:
- Marriage (unless the will was made in contemplation of marriage)
- Divorce or annulment (may revoke provisions for the former spouse)
- Signing and witnessing a written revocation declaration
- Physical destruction of the will by the testator (or directed person) with intent to revoke
- Making a new valid will or codicil
- A court order in limited, exceptional circumstances
Seeking Legal Advice: Why It’s Crucial
Whether you’re considering contesting a will, defending a claim, or reviewing your own estate plan, getting expert legal advice is essential. NSW succession laws are detailed and outcomes can depend on subtle differences in personal circumstances.
A qualified wills and estates lawyer can help you:
- Confirm your eligibility to contest or challenge a will
- Build a solid Family Provision Claim
- Defend an estate from unreasonable claims
- Ensure your testamentary wishes are legally protected. Learn more in Are Your Testamentary Wishes Really Protected? and How to Protect Your Testamentary Wishes.
If you’re planning ahead, don’t miss Important Things to Consider When Writing a Will.
Want to leave more than just legal instructions? Use our free “To Those That I Love” template to share personal wishes, memories, and messages alongside your will.
Call 1300 QUINNS (1300 784 667), +61 2 9223 9166 or submit an enquiry today to speak with an experienced estate lawyer.
Want to understand more about estate planning in NSW? Download our comprehensive Wills & Estates Ebook.
NEED HELP? This article provides general information and should not be considered legal advice. For personalised guidance, please contact our expert legal team at The Quinn Group by calling 1300 QUINNS (1300 784 667) or +61 2 9223 9166, or submit an online enquiry form to arrange an appointment.
