Written by: David Cossalter The death of a loved one is a challenging time under the best of circumstances, made all the more difficult if you’ve discovered you were not included in their will. It can feel confusing or upsetting, particularly if you believed you would be included based on your relationship with the deceased.
If you believe the will doesn’t reflect your relationship with the deceased or that your share of the estate isn’t adequate, there are steps you can take to address this issue.
Contesting a will (NSW) is a detailed legal process with specific rules and strict time limits. To help you approach it with confidence, our December 2025 guide explains the grounds for contesting a will, who can contest a will in NSW, the steps involved, and how long the process may take. This guide offers simple, reliable guidance on how to challenge a will in NSW at a time when things can feel overwhelming.
Who is eligible to contest a will in NSW?
If you’re considering challenging a will in NSW, the first step is to check whether the law recognises you as an ‘eligible person.’ Under the Succession Act 2006 (NSW), only certain people with a real personal or financial relationship with the deceased can make a claim.
Eligible people who can contest a will in NSW include:
- Spouses and de facto partners: This includes married partners and de facto partners who lived with the deceased as a couple.
- Children: Biological and adopted children can contest a will.
- Former spouses: A former husband or wife may be eligible, particularly if there were ongoing financial ties.
- Dependants who lived with the deceased: A person who was wholly or partly financially dependent on the deceased and a member of their household may qualify. This is where some stepchildren or other relatives may be eligible.
- Dependent grandchildren: Grandchildren who relied on the deceased for financial support may also have standing to claim.
- People in a close personal relationship: Someone who lived with the deceased and provided mutual domestic support—such as a long-term companion or unpaid carer—may be eligible under this category.
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What are the grounds for contesting a will in NSW?
When deciding if you have grounds to contest a will in NSW, the law looks at several key issues, including:
- Mental capacity
- Undue influence
- Family provisions and dependency
- Any changes to previous wills
- Fraud
- Lack of validity.
1. Mental capacity
| What it means | What to ask yourself |
|---|---|
| This refers to whether the person making the will understood what they were doing: who their beneficiaries were, what they owned, and the effect of their decisions. |
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2. Undue influence
| What it means | What to ask yourself |
|---|---|
| This occurs when someone pressures or manipulates the deceased into making will decisions they wouldn’t have made freely. |
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3. Family provision (not being adequately provided for in a will)
| What it means | What to ask yourself |
|---|---|
| The deceased did not make proper financial provision for you, given your relationship and needs. |
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4. Changes from previous wills
| What it means | What to ask yourself |
|---|---|
A newer will replaces an earlier version, or significant changes were made that remove or reduce your share. |
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5. Fraud
| What it means | What to ask yourself |
|---|---|
A will was created, altered, or signed through dishonest or deceptive conduct. |
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6. Lack of validity
| What it means | What to ask yourself |
|---|---|
A will must meet specific legal standards and formalities for it to be considered valid in NSW. |
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Family provision claims when contesting a will
The most common reason people dispute a will in NSW is through a family provision claim. You can make this claim if you believe the will does not provide you with enough support to maintain a reasonable standard of living, pursue education, or continue your lifestyle. You may also submit this type of claim if there is no will.
Family provision ensures that people who had a genuine connection to, or were dependent on, the deceased are not left without proper support after their passing.
To make a successful family provision claim in NSW, you generally need to show:
- You are an eligible person
- The deceased did not adequately provide for you in their will
- The court should use its discretion to adjust the distribution of the estate in your favour.
Considerations when assessing your claim
To decide if a deceased person has adequately provided for you or your family, the court looks at a range of factors. The most important ones include:
| Factor | What’s considered |
| 1. Your financial circumstances and needs | Your financial resources, including your:
Being financially secure doesn’t preclude you from making a claim, but it may reduce the extent of what you can reasonably claim. |
| 2. Estate size | The value and nature of the estate are important. Questions considered include:
Larger estates can accommodate more substantial claims, while smaller estates limit what can be provided. |
| 3. Your relationship with the deceased | The nature, quality and history of your relationship, including:
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| 4. Reasoning of the deceased | Any written or verbal explanations left by the deceased regarding the division of their estate will be an important consideration, though they must be deemed rational and accurate. |
| 5. Disabilities or health conditions | If your earning capacity is affected by, or you require support for:
If you provide care for a dependent, this will also be considered. |
| 6. Competing claims | Your potential entitlement is balanced against any claims made by other eligible persons and their needs and relationships, which may affect its outcome. |
Case study: Family provision claim for a child left out of a will
Background | A Cessnock woman was left out of her father’s will despite being his only child. The entirety of his will was left to his great-grandchildren and his partner. |
Issue | The will specifically excluded the daughter from the will, claiming this was because the father had given her $100,000 around 10 years before his death. The daughter had limited financial resources and a close relationship with her father. She felt that being left out of the will meant she was not adequately provided for by her father. |
GMP Law’s approach | It was argued that leaving her out of the will was unusual and that provisions should have been made to help the daughter cover costs for accommodation, further education, a vehicle, furniture, and other living expenses. |
Outcome | GMP Law successfully argued the case, resulting in our client receiving $350,000 of the estate. |
Legal insight
Contesting a will on family provision grounds in NSW requires more than proving a close relationship. It’s about showing the omission creates genuine financial or practical hardship. Prior gifts or informal support do not automatically rule out a claim, as courts focus on whether reasonable needs, such as housing, education, or living expenses, have been adequately met. This case highlights that clear evidence of need, combined with the unusual nature of being left out, can make a compelling case for receiving a meaningful share of the estate.
The legal process of contesting a will in NSW
If you’ve decided to move forward with your will dispute claim, it’s helpful to understand the process ahead. While every case is unique, most challenges to a will in NSW follow a generally similar set of steps.
| 1. Case assessment | If you’re eligible to dispute a will in NSW, your initial consultation with your estate dispute lawyer will:
This early assessment is essential. Not every dispute with emotional weight has sufficient legal merit, and it’s important you get an honest assessment of your prospects for success. |
| 2. Gathering evidence and documentation | The next step is to collect all of the evidence to support your claim, such as:
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| 3. Documents for validity disputes | If you’re disputing the validity of a will, you may also be asked to provide further information, such as:
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| 4. Filing your application | To begin formal legal proceedings, your lawyer will prepare and file the appropriate documents with the Supreme Court of New South Wales and involve any appropriate parties, including the executor of the will. |
| 5. Negotiation and mediation | In NSW, most will disputes will be resolved without going to trial. Mediation is often quicker, less costly, less emotionally draining and more flexible than a trial.
Mediation is undertaken with settlement in mind. These discussions typically take into account:
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| 6. Court proceedings and trial | If an agreement can’t be reached between the parties, a case will proceed to trial. Each side presents evidence, including witness testimony and expert reports. Trials are often lengthy, expensive and emotionally demanding, though in the event that parties are unable to reach a settlement, a trial may be the only way to achieve a resolution. |
Find out how much you can claim today
Case study: Avoiding a trial in a will dispute
| Background | Two brothers from Newcastle sought GMP Law’s advice after their father left his entire $200,000 estate to his long-term de facto partner. They wanted to contest the will to secure a share of the estate. Shortly after their father’s passing, his partner also died, meaning the estate would pass to her children, potentially leaving the brothers with nothing. |
| GMP Law’s approach | Given the modest value of the estate, our team recognised that proceeding to trial could see legal costs consume the entire estate. To protect our clients’ interests, we arranged a mediation and drafted a Deed of Family Arrangement to settle the matter without court. |
| Outcome | The settlement ensured each set of siblings received 25% of the estate. Our clients avoided lengthy court proceedings, legal costs were minimised, and they achieved a fair outcome. |
Legal insight
Sometimes the best way to achieve a favourable outcome in a will dispute is through negotiation or mediation rather than trial, especially when the estate value is modest. We prioritise practical solutions that protect our clients’ interests.
How long do I have to contest a will in NSW?
If you’re planning to contest a will in NSW, you’ll need to ensure you meet the strict deadlines. Even if your claim is warranted, it could be voided by missing these deadlines.
Family provision claims
In NSW, a family provision claim must be lodged with the Supreme Court within 12 months of the date of death. The time limit runs strictly from this date, rather than when probate is granted or when you become aware of the will’s makeup.
NSW doesn’t impose a formal statutory time limit for giving notice to the executor about a claim, though it’s best practice to notify them as soon as possible. This helps prevent the estate from being distributed before your claim is heard.
If your application is filed outside of this 12-month time limit, the court might not consider it unless you get special consideration to proceed out of time.
Time limit extensions
NSW courts can allow late family provision claims, but only under certain circumstances. To get an extension, you’ll generally need to show:
- A well-explained and reasonable cause for the delay
- Your claim is likely to succeed
- That no one involved would be unjustly treated due to the delay
It’s also worth noting that even if you complete the above, the longer the delay, the harder it is to persuade the court to let your will dispute proceed.
Differences for validity contests
If you believe a will is invalid, there are different rules than for family provision claims. Validity challenges should be made before the will is confirmed as valid by the court. While it’s possible to challenge a will after this, it’s much more difficult and complicated to do so and hinges on when you’ve become aware it’s invalid and why your claim is delayed. There’s no fixed deadline for validity challenges in NSW, but it’s crucial to act as quickly as possible to avoid further complicating things.
