Losing a loved one is difficult enough without the added stress of feeling uncertain about their estate. If you believe a will does not adequately provide for you, or if you are an executor facing a claim, understanding the legal process can help you make informed decisions during a challenging time.

At Bateman Battersby Lawyers, we regularly act for both people contesting a will (the claimant or plaintiff) and people defending a claim (the executor or defendant). This guide explains who is eligible to make a claim in New South Wales, what evidence is required, and what the process typically involves.

What Does “Contesting a Will” Mean in NSW?

In New South Wales, contesting a will is most commonly done by bringing a family provision claim under the Succession Act 2006 (NSW). This type of claim is not about arguing whether the will itself is valid. Instead, it is a claim that the will, or the laws of intestacy if there is no will, did not make adequate provision for a person the deceased had a responsibility to provide for.

Who Is Eligible to Make a Family Provision Claim?

A claim may be brought by certain categories of people, including:

• the deceased’s spouse (including a de facto partner)
• a former spouse
• a child of the deceased (including adult children)
• a person who was, at any particular time, a dependant of the deceased and a member of the deceased’s household (for example, a stepchild who meets this criteria)
• a person who was living in a close personal relationship with the deceased at the time of death (certain caring relationships can qualify)

Eligibility is only the first step. The Court then considers whether adequate provision has been made, having regard to matters such as the nature of the relationship between the claimant and the deceased, competing claims on the estate, and the claimant’s financial need.

What Evidence Must the Claimant Provide?

A person making a claim is usually required to produce detailed evidence about their financial position and needs, commonly including:

• income (wages, Centrelink, business income, investment income)
• regular expenses (rent or mortgage, utilities, medical costs, schooling, insurance, debts)
• assets (real estate, savings, shares, superannuation interests, vehicles)
• liabilities (credit cards, loans, tax debts, guarantees)
• health issues, capacity to work, and any special needs

Importantly, the Court often requires financial information not only about the claimant, but also about any person they live with. For example, a spouse or partner’s resources and expenses can affect the assessment of need.

Time Limit to Bring a Claim

In NSW, a family provision claim must generally be filed within 12 months of the date of death. Applications filed out of time may be allowed only in limited circumstances, and delay can create practical difficulties if the estate has already been distributed.

The Executor’s Role in Defending a Claim

The executor, or administrator if there is no will, is responsible for representing the estate in a family provision claim.

This typically involves:

• obtaining legal advice and responding to the claim
• gathering estate information, including assets, liabilities, estate accounts and valuations
• ensuring all relevant beneficiaries are informed where required
• defending the proceedings on a neutral basis while protecting the proper administration of the estate

How the Process Usually Runs

Once a claim is filed in the Supreme Court of NSW, the parties are, in almost all cases, required to exchange the evidence they intend to rely on, such as affidavits and financial documents. The matter is then listed for mediation, where the parties attempt to resolve the dispute.

If the matter does not settle at mediation, the proceedings are usually set down for a final hearing in the Supreme Court, where a judge determines whether provision should be made from the estate and, if so, what that provision should be.

Get Guidance You Can Trust

Whether you are considering a family provision claim or need to respond to one as an executor, having experienced legal support can make a significant difference. Our team has been guiding Penrith families through estate disputes for more than 40 years.

Contact our experienced team to discuss your situation.