How to contest a will in NSW

How to contest a will in NSW depends on the type of challenge being made against the will. 

Broadly speaking most will challenges take the form of a challenge to the testamentary capacity of the deceased person or to the amount left under the terms of the will.

Further details on how to contest a will on the basis of capacity can be found within this site by clicking here.

Contesting the will on the basis that the amount provided under the terms of the will is the more common challenge to a Will and is also commonly referred to as ‘Family Provision’.

A ‘Family Provision’ challenge to a Will, or an estate where there is no Will, involves a number of hurdles before the person challenging the Will or estate can be successful. The first of such is establishing eligibility, the 7 categories of such can be found in the tabs within this website, or by clicking here.

Eligibility does not automatically result in a successful order and there are further hurdles to overcome. Once it has been determined that there are reasonable grounds for contesting the will then proceedings are commenced in the Supreme Court of NSW by way of summons with an affidavit in support which addresses each of the relevant points in the Court's practice note.

At the time of commencing proceedings the person contesting the will must also file with the Court a notice of all of the persons which in the opinion of the person contesting, are also eligible to contest the will under Family Provision. 

The filed proceedings will be listed before the Court for case management orders, which include directions as to the discovery of documents between the parties, and filing of evidence, before the matter is listed for a mandatory mediation. In most instances the proceedings are settled at the mediation and without either party having to attend Court in person. If the mediation proves unsuccessful the proceedings will be listed for final hearing, at which point a Judge of the Supreme Court will determine whether to award the person contesting the will a sum of money.

In NSW there is a time limit of 12 months from the date of death to apply for an order under Family Provision, so those considering contesting a will must not delay. 

The Contested Estates Division is staffed by experienced contested wills and estates lawyers who assess all enquiries on a no obligation basis. The assessment is free and can be conducted online, via telephone or in person at one of our many offices throughout Sydney. Click here to start the online assessment to receive a no obligation assessment of your case by an experienced lawyer from our contested estates division, at no cost.