A parent dies in Sydney and the will leaves almost everything to one child, to a second spouse or to a charity. A daughter in Hong Kong, a son in Melbourne or a long-term partner may feel they have been left out unfairly. In New South Wales, the usual way to challenge that result is a family provision claim under the Succession Act 2006 (NSW).
A family provision claim does not say the will is invalid. It asks the Supreme Court of NSW to order that more be provided from the estate for someone the deceased had a responsibility to provide for. For Chinese and other Asian families, these claims often involve relatives overseas and assets in more than one country.
This article explains how contesting a will in NSW works (as at October 2026).
Who can make a family provision claim in NSW
Only an “eligible person” can apply. Section 57 of the Succession Act 2006 (NSW) lists six categories:
- the deceased’s spouse at the time of death;
- a person who was living in a de facto relationship with the deceased at the time of death;
- a child of the deceased;
- a former spouse of the deceased;
- a person who was, at any time, wholly or partly dependent on the deceased and who is either a grandchild of the deceased or was, at any time, a member of the deceased’s household;
- a person living with the deceased in a close personal relationship at the time of death (broadly, two adults living together where one or each provides the other with domestic support and personal care, other than for payment).
The first three categories have a direct right to apply. For the last three (former spouses, dependent grandchildren or household members, and close personal relationships), the court must also be satisfied that, having regard to all the circumstances, there are factors that warrant the application. Being in one of those categories is the starting point, not the end of the question.
What the court looks at
The court asks whether the will (or the intestacy rules, if there is no will) has made adequate provision for the applicant’s proper maintenance, education or advancement in life. It looks at the position at the time it hears the case, not only at the date of death.
The court weighs matters such as the relationship, the applicant’s needs and resources, the size of the estate, the claims of other beneficiaries, the applicant’s contributions and the deceased’s wishes. Each case turns on its own facts.
The 12-month time limit
A family provision claim in NSW must be made within 12 months after the date of death. The time runs from death, not from the grant of probate, and a claim can be filed even if no grant has yet been made.
The court can allow a late claim if the applicant shows sufficient cause, or if the parties consent. Late claims are uncertain and become harder once the estate has been distributed. If you think you may have a claim, take advice early rather than waiting to see what the executor does.
Notional estate: a feature unique to NSW
NSW is the only state where the court can make orders over property that is not part of the deceased’s estate at all. This is called “notional estate”. In some circumstances, the court can treat property that passed outside the will as available for a claim, such as assets given away before death or the deceased’s interest in property held as joint tenants that passed to the surviving owner.
The rules are detailed and we cover them in a separate article. The point here is that in NSW a claim may be worth considering even when the estate itself looks small.
Costs risk
Many people assume the estate always pays everyone’s legal costs. That is not the case. Costs are in the court’s discretion. The court can order that costs be paid out of the estate or notional estate, but an applicant who brings a weak claim, rejects a reasonable offer or runs the case unreasonably may receive no costs, or may be ordered to pay costs.
In smaller estates, legal costs can consume much of what is in dispute. A realistic early assessment of the claim, by both sides, is one of the most useful steps in any family provision dispute.
Mediation is required
The Succession Act 2006 (NSW) requires the court to refer a family provision application to mediation before it deals with the application, unless it orders otherwise for special reasons. The Supreme Court’s practice note for family provision proceedings expects the parties to attend the mediation in person unless there are exceptional circumstances.
Most claims resolve at or after mediation. A settlement can be more flexible than a court order: for example, a right to live in the home for a period, a staged payment, or the transfer of a particular asset. It can also preserve relationships that a full hearing would damage.
Overseas claimants and claims against overseas family
An eligible person does not have to live in Australia to make a claim in NSW. A child in Shanghai, Kuala Lumpur or Singapore can apply, subject to the same 12-month limit.
Cross-border claims raise practical issues:
- Evidence. Affidavits sworn overseas must be properly witnessed. Documents in Chinese or another language usually need translation.
- Attendance at mediation. Because personal attendance is expected, an overseas party should raise travel or remote attendance with the court and the other side early.
- Executors and beneficiaries overseas. Serving documents and enforcing orders abroad takes more time.
- Assets outside NSW. Land is generally governed by the law of the place where it is located. A NSW order may not reach a flat in Kuala Lumpur or Taipei, and other countries may have their own inheritance rules or claims. Where the deceased lived and was domiciled can also affect what the NSW court can deal with.
Practical steps if you are considering a claim
- Note the date of death and calculate the 12-month deadline.
- Obtain a copy of the will.
- List what you know about the estate, including property that may have passed outside the will, such as jointly owned property or assets given away before death.
- Gather evidence of your relationship with the deceased, your financial position and any contributions or care you provided.
- Consider telling the executor early that a claim may be made.
- Get an early, frank assessment of the merits and the likely costs.
- Prepare for mediation as seriously as for a hearing.
Frequently asked questions
How long do I have to contest a will in NSW?
A family provision claim must be filed within 12 months after the date of death. The court may allow a later claim if there is sufficient cause or the parties consent, but you should not rely on that. Time runs from death, not from the grant of probate.
Who can contest a will in NSW?
Eligible persons include a spouse, a de facto partner, a child, a former spouse, a dependent grandchild or household member, and a person in a close personal relationship with the deceased. Some of these categories must also show factors that warrant the claim.
Do I have to go to mediation for a family provision claim in NSW?
Yes, in almost all cases. The court must refer the claim to mediation before dealing with it unless there are special reasons, and parties are expected to attend in person unless the circumstances are exceptional.
Can I contest a will in NSW if I live overseas?
Yes. Living overseas does not stop you being an eligible person. You will need properly witnessed affidavit evidence and a plan for attending the mediation, and you must still file within 12 months of the death.
How Chua Tan Associates can help
Chua Tan Associates assists families across Australia and overseas with estate disputes, including family provision claims where relatives or assets are in more than one country. We work with local lawyers where proceedings or assets are outside Victoria or outside Australia, and our notary public can help with documents that need to be signed or certified for use overseas. Justin Chua is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner, and we often help families prepare for mediation so that the real issues can be resolved early. We advise in English, Mandarin and Cantonese.
Related reading
Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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