Can a Will Be Contested in NSW? Key Grounds Explained
A will is not always the final word. In NSW a will can be contested, but only by certain people. This article explains who can contest a will, the grounds, and who pays legal costs when contesting a will.
Contesting versus challenging
Contesting a will (a family provision claim) is where an eligible person argues they were not left adequate provision. Challenging validity is where someone argues the will itself is invalid — for example for lack of capacity, undue influence, or improper signing. Both are ways to dispute a will, with different rules.
Who has the right to contest a will?
Deciding who can dispute a will by family provision is limited to eligible persons — broadly a spouse or de facto partner, children, some former spouses and dependants, and certain close household or personal relationships. Whether a particular person has the right to contest a will, and whether the claim will succeed, depends on their relationship to the deceased and their circumstances.
Who can challenge a will's validity?
Deciding who can challenge a will on validity generally means a person with a sufficient interest — such as a beneficiary under an earlier will — on grounds like lack of testamentary capacity, undue influence, fraud or forgery, or a failure to meet signing and witnessing requirements.
Time limits and costs
A family provision claim in NSW generally must start within 12 months of death, so act promptly. As for who pays legal costs when contesting a will, costs are at the Court's discretion — sometimes met from the estate, but an unsuccessful party can be ordered to pay, and weak claims are discouraged.
Frequently asked questions
Who can contest a will in NSW?
Only eligible persons — broadly a spouse or de facto partner, children, some former spouses and dependants, and certain close relationships — can bring a family provision claim.
Who can dispute or challenge a will's validity?
A person with a sufficient interest, such as a beneficiary under a previous will, may challenge validity on grounds like lack of capacity, undue influence or improper execution.
Who pays legal costs when contesting a will?
It depends on the outcome and the Court's discretion. Costs are sometimes met from the estate, but unsuccessful parties can be ordered to pay, so early advice on prospects and costs is important.
Get advice from Leyden Legal
Whether you are considering a claim or defending an estate, will disputes are sensitive and time-critical. Leyden Legal provides clear, practical advice to families across Tamworth, Manilla and the North West.
Contact Leyden Legal today to discuss a will dispute.
This article provides general information only and is not legal advice. Strict time limits apply. Please seek tailored legal advice promptly.
