How to Contest a Will in NSW

When the Will Doesn’t Seem Right…

Imagine this: your loved one has passed away, and you’re grieving. Amid the paperwork and family gatherings, the will is read, and it’s not at all what you expected. Perhaps you’ve been left out entirely. Or maybe you’ve been given far less than you believe is fair. Worse still, the will’s wording or circumstances don’t feel right.

It’s not just a legal document in dispute; it’s your future, your financial security, and, often, your family relationships.

This is where contesting a will in NSW comes in.

Contesting vs Challenging a Will: What’s the Difference?

In NSW, the law recognises two main ways to dispute a will:

• Challenging a will: questioning its validity. This happens when you believe the will is legally defective due to reasons such as:
  • Fraud or forgery
  • Undue influence
  • Lack of testamentary capacity
  • Failure to follow formal signing/witnessing requirements
• Contesting a will:  accepting that the will is legally valid, but arguing it does not make adequate provision for you as an eligible beneficiary.
  

Both are governed by NSW’s Succession Act 2006 and interpreted through court precedents, making it essential to get strategic legal advice early.

Who Can Contest or Challenge a Will in NSW?

Not everyone can step into the Supreme Court and make a claim.
You may have standing if you are:

• A beneficiary named in the current or a previous will
• A person who would inherit if there was no will (under intestacy laws)
• An “eligible person” under the Succession Act, such as:
  
  • A spouse (including de facto partners)
  • A child of the deceased
  • A former spouse
  • A person who was dependent on the deceased and part of their household
  • A grandchild who was dependent on the deceased

Grounds for Contesting or Challenging a Will

Challenging a Will (Validity Disputes)

A court might find a will invalid if:

• Undue influence: the testator was pressured or coerced into certain provisions
• Fraud or forgery: someone altered or created a false will
• Lack of capacity: the will-maker did not understand the nature of their decisions
• Non-compliance with formalities: not signed or witnessed properly
  

Contesting a Will (Family Provision Claims)

You may have grounds if:

• You have been left out entirely
• Your share is significantly less than needed for your maintenance, education, or advancement in life
• You were financially dependent on the deceased
  

The Process of Contesting a Will in NSW

While every matter is unique, the steps generally include:

1. Seek Legal Advice Early: Time limits apply. In NSW, you usually have 12 months from the date of death to file a family provision claim.
2. Check Probate Status: If probate has not been granted, you might lodge a probate caveat to pause proceedings.
3. Gather Evidence: This could include medical records, financial documents, witness statements, or proof of dependency.
4. Negotiation & Mediation: Many disputes settle out of court, saving costs and stress.
5. Court Proceedings: If no agreement is reached, the Supreme Court of NSW will decide based on evidence and statutory criteria.

Success Rate of Contesting a Will

The success rate of contesting a will in NSW is relatively high for eligible persons with clear grounds. However, it is not guaranteed. Factors that influence success include:

• The strength of your evidence
• The size and nature of the estate
• Competing claims from other beneficiaries
• Whether you acted promptly and followed proper procedure
  

Courts aim for fairness but will also uphold the will-maker’s freedom to distribute assets as they wish within the bounds of the law.

Strategic Insights from the Green & Associates Approach

At Green & Associates, we have seen how will disputes are rarely “just about the money.” They involve complex family histories, emotional strain, and long-term consequences. Our approach mirrors our success in other high-stakes disputes:

• Meticulous evidence gathering: small details can change the entire outcome
• Proactive negotiation: to secure fair settlements without unnecessary litigation
• Courtroom readiness: ensuring if trial is inevitable, we are already ahead
  

In one matter, our quick intervention in a deceased estate dispute prevented the opposing party from locking in a property transfer that would have disadvantaged our client. The right strategy, applied early, can make all the difference.

Time Limits and Risks

• Timeframe: 12 months from death for family provision claims; challenging validity should be done before probate where possible.
• Costs: Legal costs are often paid from the estate, but not always. Unsuccessful claims risk adverse cost orders.
• Emotional toll: Court proceedings can be draining. Mediation often provides a faster, less confrontational path.
  

Key Takeaways

• Yes, wills can be contested in NSW, but only by eligible people and within strict timeframes.
• Understand whether you are contesting (adequacy) or challenging (validity).
• Early legal advice is critical to protecting your position and increasing the likelihood of success.
• Strategic preparation can turn a difficult family situation into a fair resolution.
  

Need to Contest a Will in NSW?

If you believe a loved one’s will is unfair, unlawful, or improperly executed, time is against you. At Green & Associates, we combine legal precision with strategic insight to fight for the outcome you deserve.

Call us on (02) 8080 7585 or contact the G&A team to discuss your case confidentially.