A will can feel deeply unfair long before anyone opens a court file. Perhaps a long-term carer has been left out, an adult child received far less than their circumstances require, or a late change to the will does not reflect what the deceased previously intended. Challenging unfair wills in NSW can be possible, but the right legal path depends on why the will is said to be unfair.

For many families, the issue is not whether the will is technically valid. It is whether the will made adequate provision for an eligible person’s proper maintenance, education or advancement in life. That is dealt with through a family provision claim. Other cases involve concerns about capacity, pressure, fraud or whether the will was properly signed. These are different claims with different evidence, deadlines and risks.

Challenging unfair wills in NSW: start with the right claim

In NSW, most claims that a will is unfair are brought under the Succession Act 2006 (NSW). The Supreme Court of NSW can make a family provision order if it finds that the deceased’s will, or the laws of intestacy where there is no will, failed to make adequate provision for an eligible person.

A family provision claim does not mean the court simply divides an estate according to who seems most disappointed or who had the closest relationship with the deceased. The court examines the claimant’s needs, resources, relationship with the deceased, contributions to their welfare or estate, and the competing needs of other beneficiaries. The size and nature of the estate also matter.

The question is not whether an equal share would have been preferable. It is whether adequate provision was made in the claimant’s particular circumstances. That distinction is important. A claim may be strong where someone faces genuine financial hardship, has a disability, provided years of care, or was dependent on the deceased. It may be weaker where a claimant is financially secure and the deceased had sound reasons for their decision.

Who can make a family provision claim?

Not every relative can bring a claim. Under the NSW legislation, eligible persons include a spouse or de facto partner, a child of the deceased, a former spouse, and certain dependants.

A dependant may include a grandchild or a member of the deceased’s household who was wholly or partly dependent on the deceased and meets the statutory requirements. A person who was living in a close personal relationship with the deceased may also be eligible. These categories are technical, particularly for adult children, stepchildren, informal carers and people who lived together without being a couple.

Eligibility is only the first hurdle. An adult child, for example, may be eligible to apply, but still needs to show why the provision they received was not adequate. The court considers the whole relationship, including periods of estrangement, financial assistance already received, gifts, care provided and each person’s current position.

What the court considers

There is no fixed formula for how much a successful claimant should receive. The court may consider the claimant’s age, health, income, earning capacity, debts, housing needs and responsibilities to children or other dependants. It will also look at the deceased’s obligations to other beneficiaries.

A modest estate can create difficult trade-offs. If the estate is largely the surviving spouse’s home, a claim by an adult child may still have merit, but the court will take care not to leave the spouse without proper security. On the other hand, a substantial estate and a claimant with clear unmet needs may support a more significant order.

The deceased’s reasons can also be relevant. A written statement explaining why a person was excluded or given a reduced share may be considered, though it is not automatically decisive. The court looks at the evidence, not just the wording of the will.

When the issue is validity, not fairness

Some disputes are about whether the document should be treated as the deceased’s will at all. These cases may involve allegations that the deceased lacked testamentary capacity, did not know and approve the contents of the will, was subjected to undue influence, or that the document was forged or improperly executed.

A person making a will must understand the nature and effect of the document, the general extent of their assets, and the people who might reasonably expect to benefit. Advanced age alone does not mean someone lacked capacity. Nor does a diagnosis automatically invalidate a will. The key issue is the person’s capacity when they gave instructions and signed the document.

Undue influence is also more than family pressure or persuasion. It generally requires evidence that the deceased’s free will was overborne. Medical records, solicitor file notes, prior wills, messages, financial records and evidence from people who knew the deceased can all be relevant.

A validity challenge can affect the whole will. If it succeeds, an earlier valid will may apply, or the estate may be distributed under intestacy laws. By contrast, a family provision claim usually accepts that the will is valid but asks the court to make further provision from the estate.

The 12-month deadline needs early attention

In most cases, a family provision claim must be filed within 12 months of the date of death. This deadline can arrive sooner than families expect, especially where there are delays in locating the will, obtaining financial records or trying to resolve matters informally.

The court can allow a late application, but it is not guaranteed. The applicant needs to show sufficient cause for the delay, and the court may consider whether the estate has already been distributed and whether others would be prejudiced.

Acting early also gives the executor clear notice that a claim may be made. Executors have duties to collect estate assets, pay liabilities and distribute the estate properly. They should not rush distribution where they know of a genuine potential claim, but beneficiaries should not assume that an informal conversation alone protects their position.

Evidence can shape the outcome

Family conflict often produces strongly held views but limited documents. A practical legal assessment starts by gathering evidence that shows both the estate’s position and the claimant’s circumstances.

Useful material may include the will and any earlier wills, probate documents, asset and liability information, bank statements, property records, tax returns, medical reports, Centrelink information, budgets, evidence of care or financial support, and communications that help explain the relationship with the deceased.

It is also sensible to preserve text messages, emails and photographs rather than relying on memory months later. Where capacity is in issue, contemporaneous medical records and the drafting solicitor’s notes can be particularly important. Those records may support a challenge, or they may show that the will was carefully prepared and validly executed. Good advice should be candid about both possibilities.

What happens after a claim is raised?

A solicitor will usually begin by reviewing the available documents, confirming eligibility and considering the estate’s likely value. A claim may then be notified to the executor and, where appropriate, filed in the Supreme Court of NSW.

Many estate disputes resolve at mediation or through negotiated settlement. This can reduce legal costs, shorten the dispute and avoid the strain of a public hearing. Settlement is not always appropriate, particularly where there are serious allegations of coercion, dishonesty or hidden assets, but it is often worth exploring once the key information is available.

Costs require careful consideration. In some cases, a successful claimant’s reasonable costs may be paid from the estate. However, costs orders are discretionary. An unsuccessful claim, unreasonable conduct or a dispute pursued without adequate evidence can have significant financial consequences. Clear advice at the beginning can help a family make decisions based on prospects rather than emotion alone.

Practical steps before estate assets are distributed

If you believe you have been unfairly left out of a will, avoid signing releases, accepting a final distribution, or agreeing to a settlement without advice. Ask for a copy of the will, find out whether probate has been applied for, and make a written record of the key dates, including the date of death.

Do not remove documents or property from the deceased’s home without authority. Even where family members believe an item was promised to them, taking estate assets can complicate the dispute and expose them to further allegations. Keep communications measured and focused on obtaining information.

GKE Lawyers can provide practical advice on the available options, the evidence required and the time limits that apply in NSW. The earlier you obtain advice, the more scope there is to protect your position and pursue a resolution that reflects the real circumstances of the family.

A will is not always the final word, but a fair outcome depends on acting promptly, understanding the legal basis for a claim and approaching the matter with clear evidence rather than assumptions.