Contesting a Will in NSW

You opened the will expecting your name, and it was not there. Or it was there, but for far less than a sibling or a new partner walked away with. Now you are asking whether you can do anything about it, and how long you have to decide.

Here is the short answer. In New South Wales, if you are an eligible person and the will did not make adequate provision for you, you can bring a family provision claim and ask the Supreme Court to change how the estate is divided. You generally have twelve months from the date of death to start. Below is who qualifies, what it costs, your odds, and how the whole thing actually works.

These claims are more common than people assume, and they are not going away.

So if you feel like you were treated unfairly, you are not the first, and there is a proper legal process for it.

Who can contest a will in NSW

You cannot contest a will just because you are upset by it. You have to be an eligible person. In NSW that is set by section 57 of the Succession Act 2006, and it covers:

• A spouse of the deceased
• A de facto partner
• A child of the deceased
• A former spouse
• A person who was wholly or partly dependent on the deceased and was a grandchild or a member of their household
• A person who was living in a close personal relationship with the deceased at the time of death

If you are on that list, you can apply. Being eligible is the entry ticket. It is not a win. The court still has to decide whether the will left you with adequate provision for your maintenance, education, or advancement in life, and that is a separate question with its own factors.

I have noticed, and the stats show this too, that there’s been a significant jump in family provisions claims, around a 50% increase over the last 20 years.

Here is where a lot of people get caught out. A token gift does not shut the door. Leaving an eligible person one dollar, or ten thousand dollars, so that they “cannot claim” is a myth. Eligibility comes from your relationship to the deceased, not the size of the crumb left to you.

Evidence you will need

A family provision claim is not decided on how strongly you feel. It is decided on proof. You are showing the court two things: that you are an eligible person, and that you have a genuine need the will did not meet.

That usually means:

• Proof of your relationship to the deceased (marriage or birth certificate, evidence of a de facto or close personal relationship)
• A clear picture of your own finances: income, assets, debts, and what you actually need
• The size and make-up of the estate
• Any contribution you made to the deceased’s life or wealth
• Anything that speaks to the nature of the relationship, including estrangement, if there was any

The stronger and more specific your evidence, the better your position. Vague grievance does not move a court. Numbers, documents, and a real account of need do.

Grounds for contesting a will

“Contesting a will” gets used to mean two different things, and it helps to keep them apart.

The first is a family provision claim: you were an eligible person and the will did not provide adequately for you. That is what most of this page is about.

The second is challenging whether the will is valid at all. That comes up where there is a real question about:

• Testamentary capacity. Did the will-maker understand what they were doing when they signed? The long-standing test the courts still apply is the one from Banks v Goodfellow (1870) LR 5 QB 549.
• Undue influence. Was the will-maker pressured or coerced into leaving their estate a certain way.
• Fraud or forgery. Was the will faked, or the signature not genuine.

These are harder to run than a family provision claim, because you are asking a court to set a signed document aside. They rely heavily on medical evidence and witness accounts from around the time the will was made.

How long you have: the 12-month clock

For deaths on or after 1 March 2009, you have twelve months from the date of death to file a family provision claim. This is set by section 58 of the Succession Act 2006. Older advice you find online may quote a longer window, so check the current rule before you rely on it.

The court can extend the time for sufficient cause, but do not count on it. It is unusual for the court to budge, and every month you wait, assets can be distributed and the estate can start to disappear. The clock starts ticking at the date of death, not the date you found out you were left out.

If the estate is not in New South Wales, check the rule that applies. The deadlines are different in other states, and several run from the grant of probate rather than the date of death, which is a shorter and earlier window than it sounds. The safest move is to get advice on the right state’s rules as early as you can.

How to contest a will

The process is more orderly than most people expect. In broad strokes:

1. Confirm you are eligible and get a copy of the will and details of the estate.
2. Get advice early. A lawyer can tell you fairly quickly whether a claim is worth running and roughly what it is worth.
3. Try to resolve it with the estate first. Many claims settle by negotiation without a hearing.
4. File in the Supreme Court of NSW within the twelve-month limit if it is not resolved. Family provision claims are heard by the Supreme Court of NSW, not the family courts.
5. Go to mediation. Most of these matters settle at mediation rather than a final hearing.
6. Hearing, only if it does not settle. A judge then decides.

When a claim gets to a decision, the court makes a family provision order under section 59 where it finds the will did not make adequate provision for you. In working out what is adequate, it weighs the factors in section 60: your relationship to the deceased, your financial position, the size of the estate, competing claims, and more.

It is worth being honest about how these claims tend to work in practice. They usually turn less on rewarding the person who “deserves” it most, and more on whether someone who genuinely relied on the deceased has been left without adequate provision. That is a useful sense of what a court is really listening for.

What it costs to contest a will

Cost is the question everyone actually wants answered, so let me give you real ranges, not “it depends.”

If the matter stays out of court, the average cost to contest a will is around $5,000 to $10,000. If it goes to court, that rises to roughly $20,000 to $100,000. Most solicitors charge $300 to $500 per hour.

Looked at another way, a family provision claim finalised through mediation will average around $30,000. If you end up in court, that easily can climb past $50,000.

Then there is the question of who pays. People assume the estate always covers it. Not quite. If you succeed, the court can order your costs to be paid from the estate, but that is not automatic, and if a claim fails you can be left carrying your own costs and sometimes the other side’s too. Where costs are ordered against the estate, party/party costs usually work out to about 70% of your overall legal fees, so even a “win” rarely means every dollar comes back.

One more honest word on time and cost. A straightforward claim can resolve in months. A hard-run one can drag on for years, through appeals, quietly eating into the estate at the centre of it. The person with the most to gain from dragging it out is rarely the person who was wronged.

How to stop someone contesting your will

If you are on the other side of this, planning your own estate, you cannot make a will completely challenge-proof in New South Wales. But you can make a claim much harder and less attractive.

• Get proper advice when you draft the will. A well-drafted will, with your solicitor recording clear reasons for any unequal provision, is far harder to challenge. A letter of wishes can sit alongside the will and explain your thinking. If you are deliberately leaving someone out, read up first on how to leave a child out of your will, because a token gift will not do it.
• Structure your assets. Assets held as joint tenants, superannuation with a valid binding nomination paid straight to a beneficiary, and certain trusts can pass outside your estate, which shrinks the pool a claim can reach.
• Understand notional estate. This is the NSW catch. Even assets you moved out of your name can, in some cases, be “clawed back” and treated as part of your estate for a claim. It sits in Part 3.3 of the Succession Act 2006 (NSW), sections 74 to 90. It is why the structuring that works in other states does not always work here.
• Transfer assets during your lifetime, carefully. Giving assets away before death can reduce the estate, but watch the tax consequences and the notional estate rules, and get an accountant and a lawyer across it before you do anything.

A word of timing. This kind of planning works best on the first death in a couple. Once the second person has died, it is much harder to protect the estate, so the time to set it up is while you both can.

A real example: the McCullough case

The best way to understand how a court actually weighs this is to look at a real one.

Colleen McCullough, the author of The Thorn Birds, which sold more than 33 million copies worldwide, died in 2015 with an estate worth several million dollars. She had made a will in July 2014 leaving everything to the University of Oklahoma Foundation. In October 2014 she signed a second will, this time leaving her estate to her husband, Ric Robinson.

After her death, the executor, Selwa Anthony, disputed the second will. She argued McCullough had cut Robinson out after learning he had “taken a mistress” and “spent all the money,” and pointed to McCullough calling the police about Robinson earlier that year. Robinson’s side relied on medical evidence, including a doctor who recorded that McCullough’s mental state was good and that she was “completely able to make well-considered decisions.”

Justice Rein said he could not treat Robinson as “a wholly reliable witness,” but held that the executor had not proved coercion. The court accepted McCullough intended to leave her estate to her husband and upheld the second will. Each party was ordered to bear their own costs (The Estate of Colleen McCullough [2018] NSWSC 1126).

The lesson is simple. Capacity and intention at the time the will was signed decided these cases, and both sides had to prove their version with evidence, not assertion.

Here is a more recent one, with the kind of numbers that show what is at stake for an adult child left out:

When her father died, Jacqueline felt she had not been provided for and sued his estate for $3.3 million. Her father had left her out of the will, after $43 million of his property was transferred to Jacqueline’s mother in a divorce settlement, some years before. The judge ruled that the father still had a moral duty to make provision for his daughter because Jacqueline didn’t have direct access to the $43 million at that time, and her mother’s assets weren’t guaranteed to address her immediate needs. The court awarded her $1.15 million.

Being left out, even with written reasons, is not the end of the story. Where there is a genuine need and a genuine relationship, a court can still step in.

Where to from here

If you have been left out of a will, or left far less than you expected, the two things that matter most are moving before the twelve-month clock runs down and getting a clear read on whether your claim is worth running. If you are planning your own estate and want to make it harder to challenge, the earlier you set it up, the more you can protect.

Either way, book in a chat with me and my team at Justice Family Lawyers. We will tell you honestly whether you have a claim worth pursuing, or how to strengthen your own will, no pressure and no judgment. You can reach us on 1300 614 732, or read more about how we help on our wills and estates lawyers page.