If you have been left out of a will, or left less than you expected, the time limit to contest a will in NSW is usually the first thing to check. In most cases, a claim must be filed with the court within 12 months of the date of death. Only certain people can make a claim, and making one does not guarantee a share of the estate.
This article explains who can contest a will in NSW, how the 12-month deadline works, what happens if it has passed, and what the court looks at.
When people talk about contesting a will, they usually mean a family provision claim. A family provision claim in NSW is an application to the court asking for provision, or more provision, from a deceased person’s estate.
A family provision claim does not argue that the will is invalid. It says the will does not make adequate provision for the person making the claim.
Challenging whether a will is valid is a different type of dispute. It asks whether the will is legally effective at all, for example whether it was properly signed and witnessed. This article focuses on family provision claims.
Only an “eligible person” can make a family provision claim. In general terms, eligible persons are:
For former spouses, dependants and people in a close personal relationship, being eligible is not enough on its own. The court must also be satisfied that there are factors which warrant the claim being made.
A family provision claim must generally be made within 12 months after the date of death. A claim is treated as made on the day it is filed with the court.
Two points often surprise people. First, the 12 months runs from the date of death, not from the date probate is granted or the day you first saw the will. Second, you do not have to wait for probate. A claim can be made whether or not probate or administration has been granted, so you can contest a will after probate in NSW as long as you are within time.
A late family provision claim is not automatically ruled out. It may still proceed if:
Neither is guaranteed. The court decides whether the reasons for the delay are good enough, and the other parties do not have to agree. If you think you may be out of time, get advice quickly rather than assuming the door is closed.
Being an eligible person does not mean you will receive a share. The court’s concern is whether adequate provision has been made for the claimant’s proper maintenance, education or advancement in life. It looks at circumstances as they stand when the claim is being considered, not only at the date of death.
The court may consider a wide range of matters, including:
Every claim turns on its own facts, and there is no formula for the outcome.
The court must also generally refer a family provision claim to mediation before deciding it, unless there are special reasons not to. Mediation gives the parties a chance to reach an agreement without a final hearing.
The 12-month deadline can pass quickly while a family is grieving and an estate is being sorted out. Acting early gives you time to:
If you are dealing with a deceased estate and are unsure where you stand, early advice can help you understand your options.
If you think you may have a claim, or you are close to the 12-month deadline, contact Stephen Wawn & Associates for a free consultation. We can help you understand where you stand and what your options are.
This article is general information only and is not legal advice. It reflects the law in NSW as at 30 September 2026. Please contact us for advice about your circumstances.
