Family Provisions (contesting a will)

Wills & Estates

You can contest a will in New South Wales by making a family provision claim if you have been left out of the will or you feel that you have been inadequately provided for.

Contesting a will in NSW

A Family Provision Claim is made in NSW if:-

The deceased person lived in NSW at the date of their death and owned assets in NSW; or
The deceased person lived out of NSW but owned assets in NSW.

Who can contest a will in NSW?

In New South Wales, a person may contest a will if:

They are an eligible person; and
They believe they have been left without being adequately provided for (adequate provision).

Eligible Applicants

The people who are eligible to make an application for provision from a deceased person’s estate, can be found in Section 57 of the Succession Act 2006 (NSW).

They are:

The deceased’s spouse at the time of death;
A person who was living in a de-facto relationship with the deceased at the time of death;
The deceased’s child;
The deceased’s former spouse;
A person who was:
A person who lived in a close personal relationship with the deceased when the deceased died.

Time Limits

In New South Wales there is a time limit for contesting a will.
If the deceased died after 1 March 2009, a family provision claim must be commenced within 12 months from the date of death. If it is uncertain when the deceased died, the court may determine a date or time of death that is reasonable in the circumstances.

There are some exceptions to the above time limit and in some cases, out of time applications can be made. If an application for family provision is made more than 12 months after the date of death, you will need to show the court that you have ‘sufficient cause’. You must provide the court with ‘sufficient justification or excuse’ or ‘sufficient explanation.

How Do I Get a Copy Of The Will?

If you need a copy of a will, the first thing you should do is contact the executor or the solicitor acting for the estate. The executor is the person responsible for administering the deceased’s estate.