Contesting a will in NSW: family provision claims
A plain-English guide to who can claim, the 12-month time limit, what the Supreme Court weighs, and the real costs. General information only, not legal advice.
> Important: This page is general information about the law in New South Wales, not legal advice. Every estate differs, the law changes, and outcomes depend on the facts. Before acting, speak with a qualified solicitor who practises in succession law in NSW. If money is short, Legal Aid NSW or your local Community Legal Centre may help.
Losing someone is hard enough. When a will then feels unfair, or its validity is in doubt, families can face a legal process at the worst possible time. In NSW, estate disputes are heard in the Supreme Court. Understanding the basics early, well before anyone dies, can save money, time and heartache.
Contesting a will is not the same as challenging it
These two phrases are often used interchangeably. They are not the same, and the difference matters.
Contesting a will usually refers to a family provision claim: an eligible person accepts that the will is valid but argues it does not make adequate provision for their proper maintenance, education or advancement in life. The will-maker may have left them out entirely, or left them less than they need. The claim is made under Chapter 3 of the Succession Act 2006 (NSW), and the Supreme Court can order that provision be made from the estate.
Challenging the validity of a will is different. Here the argument is that the document should not stand at all. Common grounds include a lack of testamentary capacity (the will-maker did not understand what they were doing), undue influence or coercion, fraud or forgery, or improper execution (for example, not signed and witnessed as the law requires). These are sometimes called contentious probate matters. If a challenge succeeds, an earlier valid will or intestacy rules may apply instead.
This page focuses on family provision claims.
Who is an eligible person?
Not just anyone can bring a family provision claim. Section 57 of the Succession Act 2006 (NSW) sets out the eligible person categories, broadly:
the spouse of the deceased at the time of death;
a person who was living in a de facto relationship with the deceased at the time of death;
a child of the deceased;
a former spouse of the deceased;
a grandchild, or a person who was a member of the deceased's household, who was at some point wholly or partly dependent on the deceased; and
a person who was living in a close personal relationship with the deceased at the time of death.
For some categories (for example former spouses, dependants and those in a close personal relationship), the court must also be satisfied there are factors that warrant the application. Whether someone fits a category, and how the law applies, is exactly the kind of question to put to a solicitor.
A note on estranged children
As a general illustration, being estranged from a parent does not, by itself, stop an adult child being eligible or automatically defeat a claim. NSW courts have treated estrangement as one factor among many rather than a fixed rule, weighing the reasons for the breakdown, who contributed to it, and the claimant's financial circumstances. The point is illustrative only: estrangement is relevant, not decisive, and not a prediction about any case.
The 12-month time limit
Timing is critical. Under section 58 of the Succession Act 2006 (NSW), a family provision application must generally be made within 12 months of the date of death. The court can allow a late application where sufficient cause is shown or all parties consent, but an extension is not guaranteed, and delay can count against a claimant once an estate has been distributed. If you think you may have a claim, do not wait.
What the court weighs
The court does not simply ask whether someone feels hard done by. Section 60 of the Succession Act 2006 (NSW) lists many matters the court may weigh when deciding whether to make a family provision order and how much. These include:
the nature and duration of the relationship between the applicant and the deceased;
any obligations the deceased owed to the applicant or to others with a claim;
the size and nature of the estate, and any debts or charges on it;
the applicant's present and future financial resources and needs, including earning capacity;
any physical, intellectual or mental disability of the applicant or a beneficiary;
the applicant's age, any contributions they made, and any provision the deceased made for them during life or under the will; and
the character and conduct of the applicant, and any other relevant matter.
No single factor decides a case. The court balances them all, so outcomes are hard to predict.
How common are these disputes?
Estate disputes in NSW are far from rare. As reported by the ABC drawing on Supreme Court of NSW figures, more than 1,400 contested estate matters were filed in NSW in 2024, made up of close to 1,000 family provision claims and more than 400 contentious probate cases. These figures move year to year, so treat them as a guide to scale only.
Several pressures drive the trend. Rising property values mean modest-looking estates can now be substantial. Blended families, second marriages, step-children and de facto relationships create competing expectations, and growing awareness of the right to claim makes people more willing to test a will. The common thread is often unclear wishes and unresolved relationships.
Costs, risks and mediation
Contesting a will is not free, fast or risk-free. Legal costs can run into the tens of thousands of dollars, and more at a full hearing. Sometimes the court orders costs to be paid from the estate, reducing what is left for everyone. But an unsuccessful claimant can be ordered to pay their own costs and, in some cases, the other side's. That risk is real and worth understanding first.
The good news is that most claims do not reach a final hearing. Family provision matters in NSW are routinely referred to mediation, and many settle there, which is usually quicker, cheaper and less bruising for a grieving family than a courtroom fight. An honest conversation with a solicitor about merits, costs and likely outcomes should come before any decision to litigate.
A quieter way to prevent disputes
Many estate fights grow from the same roots: unclear wishes, surprises, and relationships never repaired. A clear, current, professionally drafted will, paired with open conversations while you are alive, is the best way to reduce the risk of a dispute. See a solicitor.
There is also a complementary, personal side to leaving things in good order, and that is where Afterlife AI™ fits. Afterlife AI is a consent-based digital legacy that helps preserve who a person is, in their own words, voice and values, while they are alive. The aim is continuity and connection for the people who matter, not legal effect. Features such as Executor Lock™ let you set how your digital legacy is handled, with consent recorded. It is free to start and Australian-hosted.
To be clear: Afterlife AI is not a will, does not distribute an estate, and is not a substitute for legal advice. It sits alongside proper estate planning, never in its place.
Frequently asked questions
Closing note
This guide is general information about contesting a will in New South Wales, current as at 29 June 2026. It is not legal advice and must not be relied on as such. The law can change and every estate turns on its own facts. For advice, consult a solicitor who practises in succession law in NSW, or contact Legal Aid NSW or a Community Legal Centre. The Law Society of NSW can help you find one.