Losing a loved one is difficult enough without the added stress of feeling you’ve been treated unfairly in their will. If you believe you should have received more from an estate, or been included when you weren’t, you may be wondering whether you have the right to challenge the will.

In New South Wales, this is most commonly done through a family provision claim. Understanding who can make a claim, what evidence is required, and how the process works can help you decide whether to take that step.

What is a family provision claim?

In NSW, “contesting a will” is commonly done by bringing a family provision claim under the Succession Act 2006 (NSW). This is not about arguing whether the will is valid. Instead, it is a claim that the will (or the laws of intestacy, if there is no will) did not make adequate provision for a person the deceased had a responsibility to provide for.

We often act for people on both sides of these disputes: those bringing a claim (the claimant or plaintiff) and those defending one (the executor or defendant).

Who is eligible to make a family provision claim?

A claim may be brought by certain categories of people, including:

• the deceased’s spouse (including a de facto partner)
• a former spouse
• a child of the deceased (including adult children)
• a person who was, at any particular time, a dependant of the deceased and a member of the deceased’s household (for example, a stepchild who meets this criteria)
• a person who was living in a close personal relationship with the deceased at the time of death (certain caring relationships can qualify)

Eligibility is only the first step. The Court then considers whether “adequate provision” has been made, having regard to matters such as the nature of the relationship between the claimant and the deceased, competing claims on the estate, and the claimant’s financial need.

What evidence must the claimant provide?

A person making a claim is usually required to produce detailed evidence about their financial position and needs, commonly including:

• income (wages, Centrelink, business income, investment income)
• regular expenses (rent or mortgage, utilities, medical costs, schooling, insurance, debts)
• assets (real estate, savings, shares, superannuation interests, vehicles)
• liabilities (credit cards, loans, tax debts, guarantees)
• health issues, capacity to work, and any special needs

Importantly, the Court often requires financial information not only about the claimant, but also about any person they live with (for example, a spouse or partner), because household resources and expenses can affect the assessment of need.

Time limit to bring a claim

In NSW, a family provision claim must generally be filed within 12 months of the date of death. Applications filed out of time may be allowed only in limited circumstances, and delay can create practical difficulties if the estate has already been distributed.

Role of the executor in defending the claim

The executor (or administrator, if there is no will) is responsible for representing the estate in a family provision claim.

This typically involves:

• obtaining legal advice and responding to the claim
• gathering estate information (assets, liabilities, estate accounts, valuations)
• ensuring all relevant beneficiaries are informed where required
• defending the proceedings on a neutral basis while protecting the proper administration of the estate

How the process usually runs

Once a claim is filed in the Supreme Court of NSW, the parties are, in almost all cases, required to exchange the evidence they intend to rely on (such as affidavits and financial documents). The matter is then listed for mediation, where the parties attempt to resolve the dispute. If it does not settle at mediation, the proceedings are usually set down for a final hearing in the Supreme Court, where a judge determines whether (and what) provision should be made from the estate.

Need help with a will dispute?

Whether you’re considering a claim or you’ve been named as executor in a contested estate, getting clear legal advice early can make a real difference to the outcome. We act for claimants and executors alike, and we’ll explain your options in plain English so you can make informed decisions.