In short
If you have been left out of a will or left with inadequate inheritance in New South Wales, you may be entitled to make a family provision claim under Chapter 3 of the Succession Act 2006 (NSW). You must commence proceedings in the Supreme Court of NSW within strictly 12 months from the deceased person's date of death.
The court assesses whether you are an eligible person under section 57 and whether the deceased failed to make adequate provision for your proper maintenance, education, or advancement in life. NSW law also features a powerful notional estate regime that can reclaim assets transferred prior to death.
What is the strict 12-month limitation period to contest a will in NSW?
Under section 58(2) of the Succession Act 2006 (NSW), an application for a family provision order must be made within 12 months from the date of the deceased's death.
While the court has statutory discretion to extend this period, an extension will only be granted if "sufficient cause" is shown. The court rarely grants extensions if the executor has already lawfully distributed the estate assets after the 12-month period expired.
If you intend to make a claim, you must serve a written Notice of Claim on the executor immediately. Once served, the executor cannot safely distribute the estate without personal liability until your claim is determined or formally settled.
Who qualifies as an eligible person under section 57?
You cannot contest a will simply because you feel the distribution is unfair; you must establish that you are an eligible person under section 57(1) of the Succession Act 2006. The statutory categories comprise:
- Spouses: The husband or wife of the deceased at the time of death;
- De facto partners: A person with whom the deceased was living in a de facto relationship at the time of death;
- Children: Any biological, adopted, or recognized child of the deceased (including adult children);
- Former spouses: A former husband or wife of the deceased;
- Dependents and household members: A person who was at any particular time wholly or partly dependent on the deceased, and was either a grandchild of the deceased or at any time a member of the deceased's household;
- Close personal relationships: A person living in a close personal relationship with the deceased at the time of death (where one provided domestic support and personal care without commercial fee).
For former spouses, dependent grandchildren, and close personal relationships, the court must also be satisfied under section 59(1)(b) that there are "factors warranting" the making of an application before examining the substantive claim.
What is the two-stage legal test applied by the Supreme Court of NSW?
When hearing a family provision claim, the Supreme Court applies an established two-stage test:
- Jurisdictional question: Did the deceased's will (or the rules of intestacy) fail to make adequate provision for the proper maintenance, education or advancement in life of the applicant at the time of the hearing?
- Discretionary question: If the provision was inadequate, what order for provision (if any) ought to be made out of the deceased estate in favour of the applicant?
The term "proper" means proper in all the circumstances of the case, having regard to the size of the estate, the applicant's standard of living, and the competing claims of other beneficiaries.
Which section 60 factors determine the outcome of a claim?
Under section 60(2) of the Succession Act 2006, the court considers a wide range of statutory matters when determining the claim:
- The nature and duration of the relationship between the applicant and the deceased;
- The nature and extent of the deceased's estate and liabilities;
- The applicant's current financial resources, earning capacity, and future financial needs;
- The financial circumstances and needs of other beneficiaries or competing applicants;
- Any physical, intellectual, or mental disabilities of the applicant or beneficiaries;
- Contributions (both financial and non-financial, such as homemaking or caring) made by the applicant to the deceased's welfare or property;
- Any gifts, financial support, or provision made to the applicant during the deceased's lifetime;
- Evidence of the testamentary intentions of the deceased, including statements in letters of wishes;
- The character and conduct of the applicant before and after the deceased's death (including any estrangement).
How does the NSW notional estate regime work?
New South Wales is the only Australian jurisdiction with comprehensive Notional Estate provisions under Part 3.3 of the Succession Act 2006.
If a deceased person disposed of assets before death to minimize their estate or leave someone out, the Supreme Court can designate those assets as part of the "notional estate" to satisfy a family provision order. This applies to:
- Property transferred for less than full valuable consideration within three years before death with an intention to deny family provision;
- Property transferred within one year before death when the deceased had a moral obligation to make provision;
- Property passing outside probate on death—such as superannuation death benefits paid to a third party, real estate held as joint tenants that passed by survivorship, or assets held in a family discretionary trust controlled by the deceased.
What steps should you take if you are left out or defending an estate?
Whether you are making a claim or an executor defending the testator's wishes, strategic procedural steps are vital:
- For claimants: Obtain a copy of the will, probate grant, and inventory of assets. Compile detailed evidence of your financial position, medical expenses, and relationship history. Issue a formal notice of claim to the estate solicitor before the 12-month cutoff.
- For executors: Do not distribute estate funds if you receive notice of an intended claim. Keep meticulous estate accounts, preserve assets, and prepare an affidavit detailing estate liabilities.
The Supreme Court of NSW requires all family provision cases to participate in court-annexed or private mediation before proceeding to a trial (under Practice Note SC EQ 7). Over 85% of family provision disputes are successfully resolved at mediation, saving substantial estate costs.
Our estate litigation practice provides comprehensive support across our family provision claims, probate administration, wills and estate planning, and testamentary trusts services.
Are you contesting a will or defending a deceased estate in NSW?
Biz Lawyers & Advisory represents beneficiaries, excluded family members, and executors in Supreme Court estate disputes and family provision mediations.
Contact Biz Lawyers & Advisory or call 1800 893 836 for confidential family provision guidance.
This article provides general information only. It is not legal advice. Family provision claims are subject to strict 12-month limitation periods and complex assessment of personal and financial circumstances.
Primary sources
Law and guidance checked 27 August 2026.
