Left out of a will, or left with far less than you need? Or an executor facing a claim against the estate? This page explains how family provision claims actually work in NSW — who can bring one, the strict 12-month limit, what the court weighs up, and who ends up paying the costs.
People use "contesting a will" to describe two quite different things, and the distinction decides everything that follows.
A family provision claim is by far the more common. You are not saying the will is a fake or that your father did not understand what he was signing. You accept the will is valid — you are saying it failed to make adequate provision for your proper maintenance, education or advancement in life, and you are asking the court to adjust it. That is what the rest of this page is mainly about.
Challenging the validity of the will is a different argument altogether: that the document should not operate at all. The usual grounds are that the will-maker lacked testamentary capacity, did not know and approve of the contents, was unduly influenced by someone, that the will is a forgery or was procured by fraud, or that it was not properly signed and witnessed. Different test, different evidence, different strategy.
Occasionally both are in play. More often, someone convinced their relative was "pressured" actually has a family provision claim and no realistic validity challenge — undue influence in the legal sense is a high bar, and disappointment is not evidence of it.
Only an eligible person may apply. The categories come from section 57 of the Succession Act 2006 (NSW):
Grandchildren are not automatically eligible. Plenty of websites list "grandchildren" as a category full stop — that is wrong, and it sends people down expensive dead ends.
A grandchild must also have been wholly or partly dependent on the deceased at some particular time. A grandchild who was raised or financially supported by their grandparent may well qualify. A grandchild who simply expected to be remembered in the will generally does not.
Note too that eligibility is a threshold, not an entitlement. Clearing it gets you through the door. It does not mean you will receive anything.
An application must generally be made within 12 months of the date of death.
That date matters more than people expect. The clock does not start when probate is granted, when the estate is distributed, or when you finally saw a copy of the will. It starts at the death. Families who spend eight months grieving and negotiating, then three months trying to get answers from an executor, can find themselves out of time almost without noticing.
You also do not need to wait for a grant of probate or letters of administration before making a claim.
If the 12 months has passed, the position is not automatically hopeless. The court may allow a late application where sufficient cause is shown, and an out-of-time application can also proceed where all parties consent. But neither is a right, both add cost and difficulty, and if the estate has already been distributed your practical position is weaker again. If you are near or past the mark, that is a reason to get advice this week rather than next month.
There is no formula, no percentage and no automatic share. Section 60 of the Succession Act sets out a long list of matters the court may consider. In plain terms, they group into a few themes:
The nature and duration of the relationship, and the obligations or responsibilities the deceased owed you — weighed alongside what they owed other claimants and beneficiaries.
Your financial resources and earning capacity, and your financial needs both present and future. The same question is asked of other applicants and of the beneficiaries named in the will. If you live with someone else, their financial circumstances come into it too. Your age matters, as does any physical, intellectual or mental disability — yours, another applicant's, or a beneficiary's.
Any contribution you made to acquiring, conserving or improving the estate, or to the welfare of the deceased or their family, where you were not adequately compensated for it. The adult child who spent five years caring for a parent is squarely within this factor.
Provision the deceased made for you during their lifetime or from the estate, and whether they were maintaining you before death. Substantial help while they were alive can reduce what a court thinks is still owed.
The size and nature of the estate — including any property that could be designated as notional estate — and its debts. Evidence of the deceased's testamentary intentions, including things they said. Whether anyone else is liable to support you. The character and conduct of the applicant, and of other people, before and after the death. Any relevant Aboriginal or Torres Strait Islander customary law. And a catch-all for anything else the court considers relevant.
Two consequences follow. First, a small estate limits everything — a strong claim against a modest estate may still not be worth running once costs are considered. Second, competing claims interact: what one applicant receives affects what is left for everyone else.
This is where NSW departs from most of the country, and it is the single most useful thing for a claimant to know.
In limited circumstances the Supreme Court can designate property that is not part of the estate — or that has already been distributed out of it — as notional estate, where the deceased entered into what the Act calls a relevant property transaction. Once designated, that property can be used to satisfy a family provision order.
Why it matters: assets are often arranged so that little passes through the estate. A house transferred to one child a year before death, property held jointly so it passes automatically by survivorship, or assets moved into a trust or company can all mean the estate on paper is nearly empty while the wealth plainly is not. In most states that is the end of the conversation. In NSW it may not be.
It is a technical area with real limits, and whether it applies turns closely on the facts and timing of the transaction. But if you have been told there is "nothing in the estate", that is a reason to have someone look properly rather than to give up.
Eligibility, the time limit, the likely size of the estate, and a candid view of prospects — including being told if the claim is not worth running.
A summons and a detailed affidavit are filed in the Equity Division of the Supreme Court of NSW, with a filing fee. The affidavit does most of the work.
All family provision applications are referred to mediation. This is where the large majority of matters resolve.
If mediation does not resolve it, the matter is listed for final hearing and a judge decides.
Preparation is what drives settlement. A matter that is properly evidenced from the start tends to resolve at mediation on sensible terms; one that is thin gets tested, and that is where costs escalate.
There is a widespread belief that the estate always pays everyone's legal costs. That is not right, and acting on it is expensive.
Costs are a matter for the court. If your family provision claim is unsuccessful, you may be ordered to pay your own legal costs and the costs of the defendant as well. In a modest estate, costs on both sides can consume a meaningful share of what was being fought over.
This is precisely why an honest assessment at the start is worth more than an encouraging one. A claim that looks emotionally compelling but legally weak is a claim you should be told about before you spend money on it, not after.
Michael acts for both claimants and executors across Baulkham Hills, Castle Hill, Kellyville, Bella Vista, Norwest, Rouse Hill, Glenwood and Kings Langley, and throughout Sydney and NSW — in person, by phone or by video.
Estate disputes in this part of Sydney tend to share a shape: the family home carrying most of the value, an adult child who stayed to care for a parent, a second marriage and children from both relationships, or a property transferred to one sibling years before death. None of these are unusual. All of them are worth understanding properly before positions harden and costs start running.
If you have been left out or left short: Michael assesses eligibility and prospects honestly at the outset, works out whether the 12-month limit is a problem, investigates whether notional estate is in play, and pursues resolution by negotiation or mediation with a hearing as the prepared-for last resort.
If you are the executor: Michael advises on your duties and personal exposure, responds to the claim, and works to resolve it in a way that protects the estate and you.
The first step is a free 15-minute phone call to work out whether we can assist. If we go further, you receive a written costs agreement before any work begins, and fixed fees are offered where applicable. Michael handles every matter personally.
Related services: probate and estate administration · wills and estates
This page is general information only and is current as at 10 August 2026. It is not legal advice and does not take account of your circumstances. Family provision outcomes depend heavily on the particular facts and on the size of the estate. Please obtain advice about your own situation before acting.
Only an eligible person can bring a family provision claim. Under section 57 of the Succession Act 2006 (NSW) that means the deceased's spouse at the time of death, a person living with the deceased in a de facto relationship at the time of death, a child of the deceased, a former spouse, a person who was living with the deceased in a close personal relationship at the time of death, or a person who was wholly or partly dependent on the deceased and who is a grandchild or was a member of the same household. Eligibility is only the starting point: the court then asks whether adequate provision was in fact made for you.
An application must generally be made within 12 months of the date of death. That limit runs from the death itself, not from the date probate is granted or the date you found out what the will said, which is what catches most people out. You do not need to wait for probate to be granted before making a claim.
Sometimes, but you cannot count on it. The court may allow a late application if sufficient cause is shown, and an out-of-time application may also proceed where all parties to the proceedings consent. Neither is guaranteed, and a late claim is harder and more expensive to run. If the estate has already been distributed your position is weaker again. If you are near or past the 12-month mark, get advice immediately rather than assuming it is too late.
They are two different things. Contesting a will usually means a family provision claim: you accept the will is valid but say it did not make adequate provision for you. Challenging validity means arguing the will should not operate at all, for reasons such as the will-maker lacking testamentary capacity, not knowing and approving the contents, being unduly influenced, fraud or forgery, or the will not being properly signed and witnessed. The two have different tests, different evidence and different time limits, so it matters which one applies to your situation.
Not automatically. This is one of the most common misunderstandings. A grandchild is not an eligible person simply by being a grandchild. Under section 57(1)(e) of the Succession Act 2006 (NSW) the grandchild must also have been wholly or partly dependent on the deceased at some particular time. A grandchild who was financially supported or raised by their grandparent may well be eligible; a grandchild who simply expected to inherit generally is not.
In NSW, sometimes yes. NSW has notional estate provisions that do not exist in most other Australian states. In limited circumstances the court can designate property that is not part of the estate, or that has already been distributed from it, as notional estate, where the deceased entered into a relevant property transaction. This can matter where assets were transferred before death or held in a way that keeps them outside the estate. It is a technical area and whether it applies depends closely on the facts.
An application is filed in the Equity Division of the Supreme Court of NSW, so a court file is opened. But relatively few family provision matters are decided by a judge at a final hearing. All family provision applications are referred to mediation, and many resolve there or by negotiation beforehand. Preparing a matter properly is usually what produces a sensible settlement earlier rather than later.
Not always the estate, and this is worth understanding before you start. Costs are a matter for the court. If a family provision claim is unsuccessful, the applicant may be ordered to pay their own legal costs and the costs of the defendant as well. That is why an honest assessment of prospects at the outset matters more than optimism, and why you will be told plainly if a claim looks weak before money is spent on it.
Do not distribute the estate until the position is clear, and get advice early. An executor who distributes an estate knowing a claim is on foot can face personal exposure. Your role is to act properly in the interests of the estate as a whole, which is not the same as taking sides between beneficiaries. Michael advises executors on their duties, responds to the claim, and works to resolve it in a way that protects both the estate and the executor personally.
Fifteen minutes is enough to learn whether you are eligible, whether the time limit is a problem, and whether the claim is worth pursuing at all.