Contesting a will: family provision claims in NSW

Not every will leaves everyone satisfied, and NSW law allows certain people to challenge one. The most common way is a family provision claim. This guide explains who can bring one, the strict time limit, and what the court looks at.

What it means to contest a will

People use contest a will loosely, but it usually means one of two different things. One is challenging whether the will is valid at all, for example on the ground of lack of capacity or undue influence. The other, and the more common, is a family provision claim, where an eligible person accepts the will is valid but asks the court for a larger share because they were left without adequate provision.

This article focuses on family provision claims. The theme we see is that these claims are emotional and expensive, and they are usually better resolved by negotiation than by a hearing. But the right to bring one is real, and so is the need to defend an estate against one.

Who can make a family provision claim

Only an eligible person can make a family provision claim. Under the Succession Act 2006, eligible persons broadly include a spouse or de facto partner at the time of death, a child of the deceased, a former spouse, and certain others such as a person who was dependent on the deceased and a member of their household, or a person in a close personal relationship with the deceased.

Being eligible is only the first step. The person must then show the court that they were left without adequate provision for their proper maintenance, education, or advancement in life.

The time limit is strict

This is the point not to miss. A family provision claim in NSW must generally be made within 12 months of the date of death. The court can allow a late claim in some circumstances, but you cannot count on it.

Because of the time limit, both sides need to act. If you think you have a claim, do not sit on it. If you are an executor, the 12-month period is one reason to be careful about distributing the estate too early, since distributing before a claim is resolved can create real problems. There is a separate article in this series on an executor's duties.

What the court considers

If a claim proceeds, the court looks at a wide range of factors in deciding whether to make an order and how much. These include the relationship between the claimant and the deceased, the size and nature of the estate, the financial position and needs of the claimant, the needs of other beneficiaries, any contribution the claimant made, and any competing moral claims on the estate.

The result is not a formula, it is a judgment on the whole picture. That is why outcomes vary and why good advice on the merits is so valuable before anyone commits to a fight.

Defending an estate

If you are an executor or a beneficiary facing a claim, the estate can be defended. The questions are whether the claimant is eligible, whether they were in fact left without adequate provision, and what order, if any, is appropriate. Many claims settle at mediation, which the court encourages, and which usually serves everyone better than a contested hearing that drains the estate in costs.

How we help

We act for both claimants and estates in family provision matters. For claimants, we assess the merits honestly before you spend money, and pursue the claim within time. For executors and beneficiaries, we defend the estate and manage the risk, including the timing of any distribution. Either way, the earlier we are involved, the better, because the 12-month limit and the cost of litigation both reward early, clear-eyed advice.

Frequently asked questions

Who can contest a will in NSW? Only an eligible person, broadly a spouse or de facto partner, a child, a former spouse, and certain dependants or people in a close personal relationship with the deceased.

How long do I have to contest a will? Generally 12 months from the date of death. The court can allow a late claim only in limited circumstances.

Does contesting a will mean going to court? Not usually. Most family provision claims settle at mediation, which the court encourages and which protects the estate from heavy costs.

I am an executor. Can I distribute the estate straight away? Be careful. Distributing before the 12-month claim period, or before a claim is resolved, can expose you. Get advice on timing.

Keep reading

• Wills and estates
• Executor duties: what an executor actually has to do
• How to make a valid will in NSW

This article contains general information only and is not legal advice. For advice about your situation, please contact us. Liability limited by a scheme approved under Professional Standards Legislation.