Left Out of a Will? Who Can Contest a Will in NSW

Key takeaways

• Contesting a will in NSW means asking the Supreme Court for a family provision order, arguing the will was unfair rather than invalid.
• Only an “eligible person” under section 57 of the Succession Act 2006 (NSW) can apply. There are six categories, and three carry an extra hurdle.
• You generally have 12 months from the date of death to file.
• Eligibility gets you through the door. What you receive depends on need, the size of the estate and who else has a claim.
• NSW is the only state where the court can claw back assets that left the estate before death, under the notional estate rules.

You are handed a copy of the will. You read it twice. Your name is not in it, or it is, attached to a figure that does not reflect forty years of a relationship.

The question that follows is almost always the same: am I allowed to do anything about this? If you are asking who can contest a will in NSW, the answer turns on Chapter 3 of the Succession Act 2006 (NSW). The Act does not ask whether you were treated badly. It asks whether you belong to one of six defined groups, and whether you were left without adequate provision.

Here is what those six groups look like in real families.

What Contesting a Will Actually Means in NSW

Two different things get called the same thing, and the distinction matters before you spend a dollar.

Challenging a will’s validity says the document is defective. The will-maker lacked capacity, was pressured, or the will was not properly signed and witnessed. Succeed, and the will is set aside.

Contesting a will, properly called a family provision claim, accepts the will is valid and says it failed to make adequate provision for you. The court rewrites the outcome without touching the will itself. That is where the Succession Act does its work.

If you are unsure which one applies to your situation, that is the first thing a solicitor will sort out, and it changes the evidence you need to gather.

Who Can Contest a Will in NSW? The Six Categories

Section 57 lists who may apply. Read the section itself and it is a wall of subsections. Read it as families, and it looks like this.

1. The Husband or Wife at the Date of Death

Margaret and Bill were married thirty-one years. Bill’s will, made before they met and never updated, left everything to his brother. Margaret is a spouse at the date of death, category one, no additional test.

Note the timing. Separation does not end a marriage. Only a divorce does.

2. The De Facto Partner at the Date of Death

Ray and Colleen lived together nineteen years and never married. Ray’s will named his adult children only. Colleen is eligible as his de facto partner, again with no extra hurdle, provided the relationship existed at the date of death.

This is the category most often assumed not to apply. It applies.

3. A Child of the Deceased

Susan is 58, financially comfortable, and has not spoken to her father in a decade. She is his child, so she is eligible, full stop. Adopted children are included. So are adult children. There is no age cut-off and no requirement that you were close.

Estrangement does not remove eligibility. It matters later, when the court decides what you should receive.

4. A Former Husband or Wife

Dianne divorced Colin in 1998. She is still an eligible person, but here the legislation adds a second requirement. For this category and the two below, section 59 requires you to also show there are “factors warranting” the application, meaning something that makes you a person the deceased ought reasonably to have provided for.

An unpaid property settlement might do it. A clean break twenty-five years ago almost certainly will not.

5. A Dependent Grandchild, or a Dependent Member of the Household

Josh was raised by his grandmother from the age of nine. This category requires that you were wholly or partly dependent on the deceased at some point, and that you are either a grandchild or were at some time a member of the deceased’s household, plus the “factors warranting” test.

The trap: being a grandchild is not enough on its own. Dependency is the gate. Grandchildren who received birthday money and school holidays are not, on that basis, eligible.

6. Someone in a Close Personal Relationship at the Date of Death

Alan, 79, moved in with his lifelong friend Peter after a stroke. Peter cooked, drove him to appointments and managed his medication for six years. The Act recognises two adults living together where one or each provides the other with domestic support and personal care, related or not.

It does not apply where that care was paid for or provided on behalf of an organisation, so carers and agency staff are excluded. This category also carries the “factors warranting” test.

(These are composite scenarios drawn from the pattern of matters that come through a NSW estates practice, not accounts of identifiable clients.)

What the Court Considers Under Section 60

Eligibility is the threshold. The real question is whether adequate provision was made for your “proper maintenance, education or advancement in life”, and section 60 gives the court sixteen matters it may weigh. They include:

• the nature and duration of your relationship with the deceased
• the nature and extent of the estate, and any obligations the deceased owed to you or to other beneficiaries
• your financial resources, earning capacity and financial needs, present and future
• your age, and any physical, intellectual or mental disability
• contributions you made to the deceased’s property or welfare
• any provision the deceased made for you during their lifetime
• the character and conduct of the applicant
• anything else the court considers relevant, including the deceased’s stated reasons

Two things surprise people. First, I need to do most of the heavy lifting. A comfortable applicant and a modest estate is a difficult combination, however unfair the will feels. Second, the estate’s size is a ceiling. Where there is little to divide, there is little the court can do.

This is where the answer stops being a category and becomes a judgement call. If you are weighing up contesting a will in NSW, an early and honest assessment of prospects is worth more than a confident one.

How Long Do You Have to Contest a Will in NSW? The 12-Month Clock

Section 58 requires an application to be made within 12 months of the date of death. The court can extend that, but only where sufficient cause is shown, and an extension is an argument you must win before you get to the one you came for.

Twelve months is shorter than it sounds. Probate, valuations, financial evidence and an attempt at negotiation all sit inside it.

Notional Estate: The NSW-Only Rule

New South Wales is the only Australian jurisdiction where the court can designate property that is not in the estate as notional estate and make it available to satisfy a claim.

Assets held as joint tenants that passed automatically to a survivor, a superannuation death benefit paid straight to a nominee, or a large gift made shortly before death can all potentially be brought back into reach, depending on when the transaction occurred and what the deceased intended by it.

So “there is nothing left in the estate” is sometimes the beginning of the analysis, not the end.

Do Family Provision Claims Go to Court?

Usually not. The Supreme Court of NSW Practice Note SC Eq 7 directs that family provision claims be referred to mediation at the earliest practicable time. Most resolve by negotiation or at mediation, and only a small proportion reach a final hearing.

That matters for cost. Legal costs commonly come out of the estate, so a claim fought to judgment can consume a real share of the thing everyone is arguing about. Costs are at the court’s discretion, and unreasonable claims or refused settlement offers can attract personal costs orders.

What to Gather Before You Speak to a Solicitor

If you think you may be eligible, these documents shorten the first conversation and sharpen the advice you get.

1. The death certificate, or the date of death if you do not have it yet.
2. A copy of the will, and any earlier will if one exists.
3. Proof of your relationship. A marriage certificate, birth certificate, or for a de facto or close personal relationship, evidence you lived together such as shared leases, bills, bank accounts or statutory declarations from people who knew you both.
4. A picture of the estate. Property, bank accounts, superannuation, businesses, and anything held jointly.
5. Your own financial position. Income, assets, debts, dependants, health costs and expected future needs. This is the evidence that does most of the work under section 60.
6. Anything showing contribution. Renovations you paid for, unpaid care you provided, a business you helped build.
7. The grant of probate, if one has issued, and the executor’s contact details.

If You Are the One Writing the Will

The same section, read backwards, is an estate-planning checklist. Look down the six categories and ask who in your life sits inside one. A former spouse still living on support you provide. A grandchild you raised. A friend who moved in to care for you.

You cannot contract out of the Succession Act. You can leave a clear, dated statement of your reasons alongside the will, and get advice before leaving someone out, while you can still explain yourself.

Frequently Asked Questions

Can I contest a will if I am not related to the deceased?

Sometimes. Categories five and six cover dependent household members and people in a close personal relationship with the deceased, neither of which requires a family relationship. Being a friend, on its own, is not enough.

Can an adult child contest a will in NSW?

Yes. There is no age limit and no requirement to have been financially dependent, though need still drives what, if anything, they receive.

How long do I have to contest a will in NSW?

Twelve months from the date of death, unless the court grants an extension for sufficient cause.

Does being estranged stop me from claiming?

No. Estrangement does not affect eligibility for a spouse, de facto partner or child. It is relevant to what the court decides is adequate provision, and the reasons for it, including who caused it, can be examined.

Who pays the legal costs of contesting a will in NSW?

Often the estate, at the court’s discretion. That is not guaranteed, and unreasonable claims or refused settlement offers can attract personal costs orders.

What if the estate has already been distributed?

It complicates matters but does not automatically end them, particularly where notional estate provisions are available. Act quickly.

Can a stepchild contest a will in NSW?

Not as a “child” under category three, because the Act means a natural or adopted child. A stepchild may still be eligible under category five if they were at some time a member of the deceased’s household and were wholly or partly dependent on them, and can show factors warranting the application.

Where to Go From Here

If you have been left out of a will, the first step is not a fight. It is finding out which of the six categories you fall into, and whether the estate can realistically bear a claim. The rules on who can contest a will in NSW are not a loophole. They exist because Parliament decided testamentary freedom has limits where family and dependants are concerned.