Who Can Contest a Will in NSW?

When a loved one passes away, their will is meant to reflect their final wishes, but what happens if you’ve been left out or believe the provisions aren’t adequate? In New South Wales, the law allows certain people to contest a will through what’s called a family provision claim. 
Understanding who can make a claim, the strict time limits, and what the court considers is essential before taking action. In this guide, we’ll explain who’s eligible, how the process works, and what steps you should take if you’re considering contesting a will in NSW.

Who’s eligible under NSW law?

Under the Succession Act 2006 (NSW), only “eligible persons” can contest a will for further provision. Eligible persons include:

• A spouse at the time of death;
• A de facto partner at the time of death;
• A child of the deceased (including adopted children);
• A former spouse;
• A person who was wholly or partly dependent on the deceased and either a grandchild or a member of the same household;
• A person in a close personal relationship with the deceased at the time of death (e.g., long‑term live‑in, non‑paid carer relationship). 

At Lamrocks, we’re here to explain the process and breakdown common questions we get asked. 
 

What a family provision claim is (vs. challenging validity)

A family provision claim doesn’t argue the will is invalid. Instead, it asks the Court to change the distribution because the claimant didn’t receive “adequate provision for their proper maintenance, education or advancement in life.”
If you believe the will itself is invalid (e.g., lack of capacity, undue influence, fraud, or improper execution), that’s a separate process usually run in the Supreme Court of NSW under contested probate rules.

Family provision claim time limits (12 months)

Something that is often overlooked is the time you have to make a claim. You typically have 12 months from the date of death to file a family provision claim. 
The Court may allow late applications only if “sufficient cause” is shown or if all parties consent to filing out of time. 
It’s important to act quickly. Once an estate is fully distributed, practical recovery can be much harder. 

What the Court considers (Section 60)

• If you’re eligible, the Court weighs a broad set of factors - commonly referred to as the Section 60 factors - such as:
• The nature and duration of your relationship with the deceased;
• Any obligations or responsibilities the deceased owed to you;
• The size and nature of the estate (including any notional estate);
• Your financial resources and needs (now and in future), and those of other beneficiaries;
• Any disability, age, and whether others are liable to support you;
• Your contributions to the estate or to the deceased’s welfare;
• Testamentary intentions (e.g., statements by the deceased). 

The Court’s power to make an order, and its emphasis on “adequate provision” rather than social “fairness”, comes from Sections 59–60 of the Succession Act and long‑standing case law principles summarised by NSW succession practitioners.

Common Western Sydney scenarios

At Lamrocks Solicitors, we’ve proudly supported many individuals with Family Provision claims including:  

• Adult children receiving little or being left out entirely, where their finances show genuine need and the estate has sufficient value.
• Separated spouses or former spouses where there are lingering obligations or unresolved settlements. 
• Grandchildren or household members who were dependent on the deceased (wholly or partly) and can demonstrate factors warranting an application. 
• Close personal relationships - for example, long-term, non‑paid carers living with the deceased - who meet the statutory definition and can show the relationship’s depth and dependency.

Step‑by‑step process

If you or someone you know is looking to submit a Family Provision claim, we suggest following the below steps as soon as possible for the best possible outcome: 

• Seek early advice (ideally within the first 6 months).
• Eligibility & merits check against Sections 57–60 (spouse/child/de facto often have clearer standing; other categories must show factors warranting an application).
• File in the Supreme Court of NSW within 12 months of death; use the NSW Online Registry to lodge and track documents. 
• Affidavit evidence: your relationship, financial position, needs, contributions, and any relevant statements by the deceased. 
• Mediation: most family provision matters are referred to mediation before hearing. 

If unresolved, the Court weighs Section 60 factors and may vary the distribution to ensure adequate provision. 

If you’re unsure about any of the above steps, we are here to help! 

Lamrocks has served the Nepean and Western Sydney community since 1882, combining technical expertise with an approachable, outcome‑focused approach.

If you’re facing a sensitive inheritance dispute and need to contest a will in NSW, our Wills & Estates team can help you understand eligibility, deadlines, evidence, and strategy, so you can make informed decisions during a difficult time.

Frequently Asked Questions

Q1: Can I contest a will if I’m just unhappy with the share I received?

Not simply for “unfairness.” You must be an eligible person and show that the will (or intestacy) failed to make adequate provision for your proper maintenance, education, or advancement in life.

Q2: How long do I have to start?

12 months from the date of death. Late filings require sufficient cause or consent of all parties. Act promptly. 

Q3: Do former spouses or carers qualify?

Yes - former spouses, certain dependants (including grandchildren or household members), and those in a close personal relationship may be eligible, but must also show factors warranting the application. 

Q4: What evidence helps my case?

Financial statements, proof of dependency, records of contributions/care, and any statements of the deceased’s intentions. Medico‑legal records are vital if the will’s validity is challenged (e.g., capacity). 

Q5: Will we have to go to court?

Many matters resolve at mediation. If not, the Court decides based on Section 60 factors and can alter the distribution to provide adequate support.