How to contest a will in New South Wales
To contest a will in NSW, you make a family provision claim in the Supreme Court of NSW under Chapter 3 of the Succession Act 2006 (NSW). You must be an eligible person, file within 12 months of the deceased's death, and show that adequate provision has not been made for your proper maintenance, education or advancement in life.
The framework
Family provision claims in NSW are governed by Chapter 3 of the Succession Act 2006 (NSW). Applications are made to the Supreme Court of NSW under Part 57 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
The process
Confirm you are an eligible person
Section 57 of the Succession Act 2006 (NSW) lists who can apply: spouse, de facto, child, former spouse, dependant who was a member of the deceased's household, and dependent grandchildren. If you are not listed, you cannot apply.
Check the 12-month time limit
Under section 58 of the Succession Act 2006, proceedings must be commenced within 12 months of the date of death. The court may extend the time only in limited circumstances and where it is just to do so.
Obtain a copy of the will and estate information
Request a copy of the will and probate documents from the executor or the NSW Online Registry. Identify the estate's assets, liabilities, beneficiaries, and any notional estate property.
Assess your financial and material circumstances
Prepare a statement of your assets, liabilities, income, expenses, health, age, and any contributions you made to the deceased or the estate. These are matters the court must consider under section 60.
Obtain legal advice and attempt resolution
Family provision claims are fact-intensive. Obtain legal advice early. Many matters are resolved at mediation, which is compulsory in most Supreme Court family provision proceedings.
File a Summons and Affidavit
Commence proceedings by filing a Summons and a supporting affidavit under Part 57 of the UCPR 2005, addressing eligibility, estate value, and the matters in section 60 of the Succession Act 2006.
Serve the executor
Serve the Summons and affidavit on the executor (the defendant) in accordance with Part 10 of the UCPR 2005. The executor must then file a notice of appearance and defendant's affidavit.
Attend directions and mediation
The matter is listed for directions. Most family provision claims are referred to mediation. The Supreme Court expects parties to attempt genuine settlement.
Proceed to hearing if unresolved
If mediation does not resolve the matter, it is listed for final hearing. The court considers whether adequate provision has been made and, if not, what provision ought to be made, having regard to the factors in section 60.
Orders and costs
If successful, the court orders provision to be made from the estate (or notional estate). Costs in family provision matters are in the court's discretion — the old assumption that costs come out of the estate no longer automatically applies.
Common mistakes
- Missing the 12-month time limit under section 58
- Applying when not an eligible person under section 57
- Not addressing the section 60 factors in the affidavit
- Underestimating the cost risk if unsuccessful
- Failing to engage genuinely in mediation
Get this process right with Quillio
Quillio can help draft the family provision affidavit addressing section 60 factors, summarise estate assets, and prepare a mediation position paper. See /practice-areas/wills-estates or start a free trial.
This guide is general information, not legal advice. Family provision claims are complex and carry significant cost risk. Obtain advice from an experienced wills and estates lawyer before proceeding.
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