Will Dispute Lawyers Sydney - Contesting A Will

Contesting A Will in New South Wales

If you believe a loved one’s will is unfair or possibly invalid, you’re not alone. Will disputes are more common than many people realise. But that doesn’t make them any less stressful, especially when you’re already dealing with grief.

The legal process can be complicated and emotionally taxing, which is why it’s important to have support and guidance from the start. Whether you’re a spouse, child or someone who shared a close personal relationship with the deceased, you may have legal grounds to challenge or contest a will.

Navigating this area of law can be complex, so it’s essential to obtain clear legal advice early on. At Blanchfield Nicholls, our experienced Sydney-based team is here to help you understand your rights and guide you through the next steps.

If you believe a will is unfair or invalid, speak to our experienced Sydney will dispute lawyers today for tailored advice.

Call +61 2 9994 0130 Contact Us

Who Can Contest a Will in NSW?

While not everyone has the legal right to contest a will, the law in NSW sets out clear guidelines on who can apply. The Succession Act 2006 (NSW) outlines who is considered an ‘eligible person’, including:

A spouse or de facto partner
A child of the deceased (including adopted and, in some cases, stepchildren)
A former spouse (but not a former de facto partner)
Someone who was financially dependent on the deceased
A person in a close personal relationship with the deceased at the time of death

Grounds for Contesting or Challenging a Will

When it comes to disputing a will, it’s helpful to understand that there are two main pathways:

Contesting a will: arguing it doesn’t provide enough for someone who is entitled; and,
Challenging a will: questioning the validity of the will.

Contesting a Will

This applies when an eligible person believes that the will does not provide them with adequate financial provision. This type of claim is known as a Family Provision Claim. The Court will examine a range of factors to determine whether any, or any further, provision should be made for the applicant, including:

The nature of their relationship with the deceased
Their current financial situation
Their needs and obligations
The overall size of the estate

If the Court finds that the will has not made adequate provision, it may order that a portion of the estate be reallocated to the claimant.

Example:

David was left a small sum in his father’s will, despite having cared for him during a long illness and relying on his financial support after losing work. David made a Family Provision Claim, arguing the will failed to provide for his needs. The Court agreed and awarded him a greater share of the estate.

Challenging a Will

This involves questioning the will’s legal validity. Common grounds include:

Lack of testamentary capacity – where the deceased did not understand what they were doing when making the will
Undue influence – where someone pressured or manipulated the deceased
Fraud or forgery – where the will was falsified
Improper execution – where the will does not meet legal requirements

Example:

Margaret’s uncle left a new will just before his death, naming his much younger neighbour as sole beneficiary instead of Margaret, who had been included in earlier versions. Concerned about his mental state and the neighbour’s influence, Margaret challenged the will for lack of testamentary capacity and undue influence. The Court agreed, found the will invalid, and reinstated the prior version.

The Process of Disputing a Will in NSW

The steps to dispute a will typically involve:

Initial consultation and eligibility check
Gathering evidence (e.g. financial records, medical reports, past communications)
Filing a Family Provision Claim or initiating a validity challenge
Mediation (compulsory in many cases)
If unresolved, proceeding to Court

Since strict time limits apply, so it’s important not to delay. Getting advice early can help preserve your options. Our will dispute lawyers will ensure your matter is handled efficiently and with care, so you don’t risk missing critical deadlines or losing access to your entitlements.

Time Limits for Contesting a Will in NSW

In NSW, you usually have 12 months from the date of death to file a Family Provision Claim. The Court can allow an extension, but only in limited and exceptional circumstances. For example, if the person seeking to contest the will was unaware of the death or the existence of the will until after the deadline had passed, the Court may consider this a valid reason to grant an extension.

Delays can reduce your chances of success and may limit what assets remain available. Even if your claim is eventually accepted, some or all of the estate may already have been distributed. This can make it difficult to recover your entitlement, especially if beneficiaries have spent or transferred their inheritance. In rare cases, the Court may order those beneficiaries to return part of what they received, but this is not always practical or enforceable.

To avoid missing your chance to take action, we recommend getting legal advice as early as possible.

Will Mediation & Alternative Dispute Resolution (ADR)

Many will disputes in NSW are resolved through Mediation. Mediation is a compulsory step in the process and gives everyone the opportunity to reach a private, cost-effective agreement.

Having legal guidance during mediation can make all the difference. Resolving your dispute at this stage can avoid an expensive Court visit.

Our team has extensive experience resolving disputes through mediation. We work closely with clients to prepare for the process, present their case clearly and negotiate favourable outcomes.

What the Court Considers in Will Disputes

If a dispute proceeds to Court, the judge will consider:

The relationship between the applicant and the deceased
The financial needs and resources of the applicant
The deceased’s obligations and responsibilities
The size of the estate
Any contributions (financial or otherwise) made by the applicant
Evidence of family conflict, estrangement or reconciliation
The impact of any orders on other beneficiaries

We’ll walk you through what the Court takes into account and help you build the clearest possible picture of your circumstances. Our goal is to give you the best chance of achieving a fair and thoughtful outcome.

Why Choose Us for Your Will Dispute Matter

Blanchfield Nicholls provides compassionate, strategic and practical support throughout the will dispute process. Our experienced Sydney lawyers will:

Assess your eligibility and likelihood of success
Help you gather and present strong evidence
Represent you in negotiations and Court proceedings
Offer clear, straightforward advice at every stage

We’re here to provide guidance and clarity every step of the way.

Call +61 2 9994 0130 Contact Us

Frequently Asked Questions (FAQs)

Got more questions? Here are some of the most common things people ask when considering a will dispute.

What’s the difference between contesting and challenging a will?

Contesting relates to claims for greater provision; challenging questions the will’s validity.

How long does the will dispute process take?

It depends on complexity and whether the matter settles at mediation, but usually 6 to 18 months.

Can I dispute a will if probate has already been granted?

Yes, as long as you are within the time limit.

What happens if my dispute is unsuccessful?

You may be ordered to pay costs, though outcomes vary case-by-case.

Will my dispute go to Court?

It’s possible, but the vast majority of matters settle through mediation or other negotiations.

What if I live interstate or overseas?

You can still dispute a will if the deceased lived in NSW or owned assets here.

What if the estate has already been distributed?

The Court may order partial recovery or adjustment if appropriate.

What evidence is required to contest a will?

Financial records, relationship history, medical evidence and communications with the deceased.

Who pays to contest a will?

Costs are usually paid out of the estate, but unsuccessful claims may result in personal liability.

Can you prevent a will from being contested?

Not entirely, but certain strategies can reduce the likelihood. When preparing a new will, it’s best to seek legal guidance from experienced will and estate lawyers to ensure the will’s validity and minimise the risk of disputes.

What happens if I miss the time limit to contest a will?

You must seek special permission from the Court, which is not guaranteed.

Get Advice Today

Disputing a will can feel overwhelming, but you don’t have to face it alone. With the right legal advice and support, you can take steps toward a fair and sensible outcome. Contact the experienced lawyers at Blanchfield Nicholls for guidance today.

Call +61 2 9994 0130 Contact Us

Get Started Online

Will Dispute Lawyers

Contesting A Will in New South Wales

Who Can Contest a Will in NSW?

Grounds for Contesting or Challenging a Will

Contesting a Will

Challenging a Will

The Process of Disputing a Will in NSW

Time Limits for Contesting a Will in NSW

Will Mediation & Alternative Dispute Resolution (ADR)

What the Court Considers in Will Disputes

Why Choose Us for Your Will Dispute Matter

Frequently Asked Questions (FAQs)

What’s the difference between contesting and challenging a will?

How long does the will dispute process take?

Can I dispute a will if probate has already been granted?

What happens if my dispute is unsuccessful?

Will my dispute go to Court?

What if I live interstate or overseas?

What if the estate has already been distributed?

What evidence is required to contest a will?

Who pays to contest a will?

Can you prevent a will from being contested?

What happens if I miss the time limit to contest a will?

Get Advice Today

Make An Enquiry

Additional Resources