Contested Estates & Family Provision

Family provision claims

The Court considers whether adequate provision has been made for an eligible person’s proper maintenance, education or advancement in life. A claim can arise under a will or on intestacy, where an estate is distributed without an effective will. It does not necessarily question the will’s validity. See section 59 of the Succession Act 2006 (NSW).

Who may apply?

The categories in section 57 of the Succession Act 2006 (NSW) include a spouse or de facto partner at death, a child, a former spouse, a qualifying dependent grandchild or household member, and a person living in a close personal relationship with the deceased at death. The precise statutory conditions matter. Applicants eligible only as a former spouse, qualifying dependent grandchild or household member, or close-personal-relationship applicant must also establish factors warranting the application under section 59 of the Succession Act 2006 (NSW). Eligibility does not guarantee an order.

Typical evidence

The relationship and any dependency, the applicant’s financial circumstances and needs, estate assets and liabilities, and the circumstances of other beneficiaries. Section 60 of the Succession Act 2006 (NSW) lists matters the Court may consider.

Timing

Generally within 12 months of death, subject to the out-of-time provisions explained above. Under section 58 of the Succession Act 2006 (NSW), the application is made when filed in the Court registry; notifying the executor is not the same as filing.

Possible outcomes

An order for provision from the estate, an agreed resolution, or no additional provision. The Court does not simply divide the estate equally because a relative considers the will unfair.

Our Family Provision Claims in NSW guide explains eligibility, additional thresholds and the application process in more detail.

Will-validity challenges

This dispute concerns whether a will should be admitted to probate. Issues can include testamentary capacity, knowledge and approval, undue influence, forgery, signing requirements, revocation or a later will. An allegation needs evidence; dissatisfaction with the size of a gift does not itself make a will invalid. The Supreme Court of NSW’s contested-proceedings guidance explains these grounds and the need for a relevant interest.

Who may apply?

A person with a relevant interest in the probate outcome, such as a beneficiary under a different will said to be the last valid will. Being eligible for family provision does not, by itself, give someone an interest entitling them to challenge probate or lodge a probate caveat.

Typical evidence

The will and earlier wills, drafting and signing records, witness accounts and, where relevant, medical evidence about capacity at the time the will was made. The evidence needed depends on the alleged ground.

Timing

Obtain advice before probate is granted and assets are dealt with wherever possible. A caveat or other procedural step may be relevant, but has its own requirements. The family-provision 12-month limit is not a general deadline for a validity challenge.

Possible outcomes

The disputed will may be admitted to probate or rejected. An earlier valid will or intestacy rules may then govern the estate, depending on the findings. This does not necessarily give the challenger a larger share.

Will-construction disputes

“Construction” means interpreting a will’s words and their legal effect, for example identifying the property covered by a gift or the people within a class of beneficiaries. It is different from challenging validity or seeking further provision. Part 54 of the Uniform Civil Procedure Rules 2005 (NSW) permits relevant estate questions to be determined by the Supreme Court.

Who may apply?

An executor, administrator or person with a relevant interest affected by the interpretation, depending on the question and orders sought. Family-provision categories are not the eligibility test for every construction proceeding.

Typical evidence

The complete will and codicils, relevant asset and beneficiary information, and any admissible evidence that assists interpretation. Section 32 of the Succession Act 2006 (NSW) limits when evidence of the deceased’s intention can be admitted.

Timing

Seek advice before distributing affected assets. Timing depends on the dispute and relief sought. If the concern is that the will contains a drafting error requiring rectification, separate requirements and time limits may apply under section 27 of the Succession Act 2006 (NSW).

Possible outcomes

A determination of the will’s meaning or directions about how to give effect to it. Interpretation does not itself authorise rewriting a will to provide a preferred distribution.

Executor and administration disputes

These concern the handling of an estate: accounts, assets, liabilities, distributions or the conduct of an executor or administrator. Different procedures address different problems. The Supreme Court of NSW’s estate-accounts guidance distinguishes passing accounts from issues requiring a separate administration suit.

Who may apply?

A beneficiary, executor, administrator or another person with a relevant interest, depending on the application. A creditor’s interest in payment is different from a beneficiary’s interest in distribution; neither should be assumed to confer every right of challenge.

Typical evidence

The will and grant, estate accounts, asset and liability records, receipts, distribution information and correspondence identifying the concern and any response.

Timing

Act promptly if assets may be lost or distributed, or a Court notice requires a response. The applicable time limits and steps depend on the complaint and remedy, rather than the family-provision deadline.

Possible outcomes

Orders for accounts, directions about administration or other relief suited to a proven breach. A disputed payment may need separate proceedings rather than being resolved when accounts are passed. See Part 54 of the Uniform Civil Procedure Rules.