Contested Wills, Will Disputes & Family Provision Claims

Dealing With Contested Wills, Will Disputes and Family Provision Claims in NSW

Disputes over a will can be deeply stressful, especially when they arise soon after the death of a parent, partner or close family member. Alongside grief, families may be dealing with questions about fairness, financial need, family history, blended families, promises made during life, or concerns about whether a will truly reflects the deceased person’s wishes.

In New South Wales, there are different types of will disputes. Two of the most common types of will disputes we see at GP Legal are challenges to the validity of a will and family provision claims. Although people often use phrases such as “contesting a will” or “challenging a will” interchangeably, they are not always the same thing.

For families on the Northern Beaches, getting early legal advice can help clarify your position, protect important time limits, and reduce the risk of a dispute becoming more expensive or emotionally difficult than it needs to be.

What is a contested will?

A contested will generally refers to a dispute about a deceased person’s will or estate. This may involve arguing that the will itself is not valid, or that the will is valid but does not make adequate provision for an eligible person.

A challenge to the validity of a will may arise where there are concerns that:

the deceased lacked testamentary capacity when making the will;
the deceased did not understand or approve the contents of the will;
the will was made under undue influence or pressure;
the will was forged or affected by fraud;
the will was not properly signed or witnessed;
a later will exists; or
the deceased revoked the will during their lifetime.

The Supreme Court of NSW explains that a will is not set aside simply because someone believes it is unfair. A validity challenge is about whether the will should legally be accepted as the deceased’s final will. A family provision claim, by contrast, accepts that the will may be valid but asks the Court to alter the distribution of the estate because adequate provision was not made.

What is a family provision claim?

A family provision claim is an application to the Supreme Court of NSW for a share, or a larger share, of a deceased person’s estate. It may be made where an eligible person has been left out of a will, received less than they expected, or believes the estate distribution does not properly provide for their maintenance, education or advancement in life.

In simple terms, a family provision claim asks the Court to consider whether the deceased had a responsibility to provide for the claimant and whether the provision actually made was adequate.

This does not mean every disappointed beneficiary can successfully claim against an estate. The Court looks carefully at the claimant’s relationship with the deceased, their financial circumstances, the size of the estate, competing claims from other beneficiaries, and many other relevant factors.

Who can make a family provision claim in NSW?

In NSW, only an “eligible person” can make a family provision claim. Eligible people may include:

the deceased’s husband or wife;
a de facto partner, including a same-sex de facto partner;
a child of the deceased, including an adopted child;
a former husband or wife;
certain people who were wholly or partly dependent on the deceased;
a grandchild who was dependent on the deceased and a member of the deceased’s household at a relevant time; and
a person who was living in a close personal relationship with the deceased at the time of death.

Eligibility is only the first step. A person may be eligible to apply but still need to prove that further provision should be made from the estate.

What does the Court consider?

Family provision claims in NSW are not decided by a simple formula. The Court may consider factors such as:

the nature and length of the relationship between the claimant and the deceased;
any obligations or responsibilities the deceased had to the claimant;
the size and value of the estate;
the claimant’s financial position and future needs;
the financial circumstances of other beneficiaries;
the claimant’s age, health and earning capacity;
any disability affecting the claimant;
contributions made by the claimant to the deceased or the estate;
whether the deceased provided for the claimant during their lifetime;
the character and conduct of the claimant; and
any other matter the Court considers relevant.

The result depends heavily on the facts. For example, an adult child who is financially independent may be treated differently from a spouse who relied on the deceased for housing or income. In blended families, the Court may need to balance the needs of a surviving partner against the expectations and circumstances of children from an earlier relationship.

Time limits for contesting a will in NSW

Time limits are critical. A family provision claim in NSW must generally be filed within 12 months of the deceased person’s death. The Court can allow a claim outside that period in some circumstances, but an extension is not automatic.

If there are concerns about the validity of a will, it is also important to act early. The Supreme Court of NSW notes that it is preferable to raise validity concerns before probate is granted and before the executor has dealt with estate assets.

Anyone considering a will dispute should seek advice as soon as possible. Waiting too long can make the dispute harder to resolve and may affect the options available.

Can will disputes be settled without going to Court?

Many estate disputes settle before a final hearing. Mediation is common in family provision matters, and Legal Aid NSW notes that family provision applications are referred to mediation. Mediation gives the parties a structured opportunity to resolve the dispute without the cost, delay and uncertainty of a contested hearing.

A settlement may involve changing the distribution of the estate, agreeing on payment terms, dealing with specific assets such as a family home, or resolving related estate administration issues.

Why local advice matters

Will disputes are often personal. On the Northern Beaches, estates may involve family homes, investment properties, superannuation, family businesses, blended family arrangements, or adult children living in different financial circumstances. GP Legal are experienced in contested wills and family provision claims and can help assess both the legal strength of a claim and the practical path to resolution.

Early advice can also help executors. Executors have duties to administer the estate properly, respond to claims, preserve estate assets, and avoid unnecessary delay or conflict.

Need advice about a contested will or family provision claim?

If you have been left out of a will, believe you have not been properly provided for, or are an executor dealing with a disputed estate, it is important to understand your rights and obligations early.

GP Legal – Dee Why Solicitors

GP Legal are a long-standing and experienced legal firm based in Dee Why on Sydney’s Northern Beaches. As a wills and estates lawyer, GP Legal can help you assess the will, identify the correct type of claim, manage deadlines, and work toward a practical resolution wherever possible.