In New South Wales, not everyone has the right to contest a will. Only certain people are considered “eligible persons” under the Succession Act 2006 (NSW). This includes a spouse or de facto partner of the deceased, a former spouse, a child (including adopted or sometimes stepchildren), someone who was dependent on the deceased and lived in the same household, or a person in a close personal relationship with the deceased at the time of death. A person must fall into one of these categories to bring a Family Provision Claim.

There are a few legal bases for contesting a will. A person may believe they were not adequately provided for and seek a greater share of the estate under family provision laws. Others may argue that the will is invalid due to lack of testamentary capacity, undue influence, fraud, or improper signing or witnessing. If any of these issues are proven, the court may decide to alter or disregard the will.

Contesting a will usually refers to a claim that a person should have received more from the estate, commonly made through a Family Provision Claim. Challenging a will is slightly different—it involves arguing that the will itself is not legally valid, perhaps due to fraud, lack of mental capacity, or undue influence. Both can lead to the court intervening and altering how the estate is distributed.

A Family Provision Claim must generally be made within 12 months from the date of the deceased’s death. While the court can allow claims outside this timeframe in exceptional circumstances, there are no guarantees. It is important to act quickly and seek legal advice as soon as you become aware of your rights.

Once a will is contested, the executor must usually pause the distribution of the estate until the matter is resolved. The involved parties often enter into negotiation or formal mediation to try and reach an agreement. If they cannot resolve the dispute, the matter may proceed to the Supreme Court of NSW, where a judge will make a decision based on the evidence presented. This process can delay finalisation of the estate and may incur significant legal costs.

A Family Provision Claim is a legal application made by someone who believes the deceased’s will failed to make adequate provision for them. The court considers a variety of factors, including the applicant’s financial needs, relationship with the deceased, any moral obligations owed, the size of the estate, and the competing claims of other beneficiaries. If successful, the court can alter the distribution set out in the will to ensure the applicant receives what it considers proper and adequate provision.

Stepchildren may be able to contest a will if they can show they were financially dependent on the deceased and lived in the same household. Estranged family members, such as adult children who had little or no contact with the deceased, can also bring a claim, though the success of such a claim will depend on the reasons for the estrangement and other surrounding circumstances. The court will assess the entire relationship, not just the time of death.

Yes, being left out of a will entirely does not prevent you from bringing a claim, as long as you are an eligible person. In fact, many Family Provision Claims are brought by individuals who were excluded from the will. The court will assess whether the exclusion was fair in light of your needs, relationship with the deceased, and other relevant factors.

The court looks at the whole picture. It considers the size and nature of the estate, the financial needs and personal circumstances of the person making the claim, their relationship with the deceased, any contributions made to the estate, and the interests of other beneficiaries. The court also considers any evidence of the deceased’s intentions and may review letters or explanations provided in the will. The goal is to ensure the distribution of the estate is fair and reasonable in the circumstances.

Yes. If a will is contested, the estate cannot usually be distributed until the dispute is resolved. Executors must wait for any legal claims to be finalised before proceeding with asset distribution. This can result in months or even years of delays, particularly if the matter proceeds to court.

In many cases, the legal costs of both parties may be paid from the estate, especially if the claim is reasonable and brought in good faith. However, this is not guaranteed. If the court believes a claim was weak, without merit, or made to delay or pressure other parties, it may order the losing party to pay costs personally.

To reduce the risk of your will being contested, ensure it is drafted by an experienced estate lawyer. It’s also helpful to clearly explain your decisions—particularly if you are excluding someone who might otherwise expect provision. You may include a statement of reasons or a letter of wishes. It is also important to ensure you have testamentary capacity and that your will is properly signed and witnessed.

While it’s not legally required, contesting a will involves complex legal arguments, strict deadlines, and formal court processes. A lawyer can help assess the strength of your claim, manage negotiations, prepare court documents, and represent you in mediation or court. Attempting to contest a will without legal representation is risky and may reduce your chances of success.

Yes. Probate does not prevent a claim from being made. A Family Provision Claim can still be lodged after probate is granted, as long as it is within the 12-month time limit. However, once assets begin to be distributed, it becomes more complicated to recover them, so it’s important to act quickly if you are considering contesting a will.