Will Contest Lawyers in Sydney: 9 Costly Mistakes to Avoid When Contesting a Will

Most will contests in NSW are not lost in the courtroom. They are lost months earlier, through missed deadlines, thin evidence or a costly assumption about who pays the legal bills.

Experienced Will Contest Lawyers in Sydney see the same avoidable errors again and again, and many of them happen before a lawyer is ever contacted. This guide walks through the nine mistakes that most often weaken a family provision claim or validity challenge in NSW, explains what recent Supreme Court decisions say about each one, and finishes with a practical evidence checklist you can start on today.

Key takeaways NSW family provision claims must generally be filed within 12 months of the date of death (section 58, Succession Act 2006). Give the executor written notice within 6 months so the estate is not distributed before your claim is dealt with. Courts are filtering out claims that overstate closeness or dependency, so eligibility must be proven with evidence. Legal costs are not automatically paid by the estate, and the Court can cap recoverable costs in modest estates. Detailed financial evidence, a household budget and proof of your relationship with the deceased are often decisive. Most matters settle at negotiation or the mandatory mediation under Practice Note SC Eq 7, so preparation for mediation matters.

IN THIS GUIDE

1. Why Will Contests Are Rising in NSW
2. The 9 Most Common Mistakes When Contesting a Will in NSW
3. Evidence Needed to Contest a Will: A Practical Checklist
4. How Will Contest Lawyers in Sydney Help You Avoid These Mistakes
5. Will Contest Timeline at a Glance
6. Frequently Asked Questions
7. Final Thoughts: Get Advice Before the Mistakes Happen

Why Will Contests Are Rising in NSW

Family provision claims are now one of the busiest areas of the Supreme Court. More than 1,000 family provision applications were filed in NSW in 2023, around a quarter of all proceedings commenced in the Court’s Equity Division, according to a September 2026 review by Colin Biggers & Paisley. The same review links the trend to rising wealth among older Australians, cost-of-living pressure on adult children and the growing number of blended families.

More claims also means closer scrutiny. Judges are increasingly testing whether claimants are genuinely eligible, whether their financial need is properly proven and whether legal costs are proportionate to the size of the estate. That makes the early decisions in a matter more important than ever.

The 9 Most Common Mistakes When Contesting a Will in NSW

Mistake 1: Waiting until the deadline is close

Under section 58 of the Succession Act, a family provision claim must be filed within 12 months of the date of death. The Court can extend that time if “sufficient cause” is shown, but late claimants carry the burden of explaining the delay and face real difficulty if the estate has already been distributed.

The less obvious risk sits at the six-month mark. Section 93 generally protects an executor who distributes the estate six months or more after death without notice of a claim. Sending formal written notice early, and lodging a probate caveat where the will itself is in question, keeps your options open.

What to do instead: seek advice in the first few weeks, even while you are still grieving. An early conversation costs little and preserves every pathway.

Mistake 2: Assuming you are eligible

Only “eligible persons” under section 57 can bring a family provision claim. Spouses, de facto partners and children are eligible automatically. Grandchildren, former household members and people in a close personal relationship must prove more, including dependency on the deceased and factors warranting the claim (section 59).

Recent cases show how strictly this is applied. In Broadus v Cradduck [2025] NSWSC 402, an adult grandson’s claim was dismissed because being a grandchild did not by itself establish eligibility and dependency had to be proven with evidence. In Curtis v Curtis [2024] NSWCA 136, the Court of Appeal overturned orders that had made provision for grandchildren.

What to do instead: before anything else, have a lawyer confirm which category you fall into and what evidence of dependency or relationship you will need.

Mistake 3: Choosing the wrong type of claim

“Contesting a will” covers two very different legal pathways, and mixing them up wastes time and money.

	Family provision claim	Validity challenge
What you argue	The will is valid but leaves you without adequate provision.	The will should not stand at all.
Typical grounds	Financial need, relationship, contributions, competing claims (section 60).	Lack of testamentary capacity, undue influence, suspicious circumstances, formal defects.
Key time limit	12 months from death.	Act quickly, ideally before probate is granted (often via a caveat).
Possible result	Court orders a larger share for you.	Will set aside; an earlier will or intestacy rules apply.

Some matters involve both. A specialist will tell you whether one, the other or a combined claim fits your facts.

Mistake 4: Under-preparing your financial evidence

The Court’s first question in a family provision claim is whether you have been left without adequate provision for your proper maintenance, education and advancement in life. Answering it requires a clear, honest picture of your finances. Under Practice Note SC Eq 7, claimants file affidavit evidence covering their assets, liabilities, income and expenses, and since June 2024 the pro forma affidavit also asks for a family tree diagram.

The Colin Biggers & Paisley review identifies detailed financial evidence, budgets, medical material and proof of dependency as often decisive. Vague claims of hardship rarely persuade a judge or the other side at mediation.

Mistake 5: Assuming the estate will pay your legal costs

This is one of the most expensive misconceptions. Section 99 of the Succession Act gives the Court a discretion over costs, and it is not exercised automatically in the claimant’s favour. In Pethers v Pethers (No 2) [2025] NSWSC 561, the Court confirmed that weak, unmeritorious or tactical claims can lead to personal adverse costs orders. In Lord v Craig [2026] NSWSC 17, involving a net estate of about $135,000, recoverable costs were capped at $22,500 including GST.

What to do instead: ask for a written costs estimate at each stage and a candid view of your costs risk. Many specialist firms offer no win, no fee arrangements (Conditional Costs Agreements) in suitable matters, so ask how “success” is defined and who pays disbursements.

Mistake 6: Treating estrangement as the end of the road

Many people assume they cannot claim because they had not spoken to a parent for years. That is not the law. In Steinmetz v Shannon (2019) 99 NSWLR 687, the Court of Appeal treated estrangement as one factor among many, looking at what caused it, whether reconciliation was attempted, the size of the estate and competing claims. The reverse mistake is also common: ignoring estrangement altogether. Your evidence should address it honestly and explain the circumstances.

Mistake 7: Overlooking assets outside the will

A will only deals with assets the deceased owned in their own name. Property held as joint tenants, superannuation and life insurance often pass outside it. NSW is unusual because Part 3.3 of the Succession Act allows the Court, in certain circumstances, to designate such assets as notional estate and make orders against them. Overlooking them can make an estate look too small to justify a claim when it is not.

Mistake 8: Saying too much, too soon

Angry emails to siblings, accusations on social media or informal promises at the funeral can all end up as evidence. Equally, signing a release or “family agreement” without advice can extinguish a claim, as a release of family provision rights generally needs the Court’s approval (section 95) to be binding. Let your lawyer handle formal communications with the executor and beneficiaries.

Mistake 9: Walking into mediation unprepared

Practice Note SC Eq 7 requires the parties to attend mediation, and most contested estates in NSW resolve through negotiation or at that stage. Mediation is not a formality. Arriving without a clear understanding of your needs, the estate’s true value, likely costs to a hearing and a realistic settlement range often leads to a poor deal or a missed chance to resolve the matter.

Evidence Needed to Contest a Will: A Practical Checklist

Start gathering these documents early. Your lawyer will tell you which matter most for your claim.

ABOUT THE ESTATE AND THE WILL

• A copy of the will, plus any earlier wills or codicils you know of
• The death certificate and the executor’s contact details
• Any information about estate assets and debts, including property, bank accounts, shares, super and insurance
• Details of assets held jointly or transferred before death (possible notional estate)

ABOUT YOUR FINANCIAL POSITION

• Recent payslips, tax returns and Centrelink statements
• Bank, mortgage, loan and credit card statements
• A realistic weekly or monthly household budget
• Medical reports if illness or disability affects your ability to work or your future needs

ABOUT YOUR RELATIONSHIP WITH THE DECEASED

• Photos, cards, messages and emails showing the relationship over time
• Evidence of care you provided, money you contributed or work on their property or business
• Names of people who can confirm your relationship and contributions
• A simple family tree showing all children, partners and grandchildren

FOR VALIDITY CHALLENGES

• The deceased’s medical records around the time the will was made
• Names of the will-maker’s solicitor and the witnesses
• Any evidence of pressure, isolation or a beneficiary’s involvement in preparing the will

Tip for the host site: this checklist works well as a downloadable PDF lead magnet for readers.

How Will Contest Lawyers in Sydney Help You Avoid These Mistakes

A specialist estate litigator does more than file paperwork. In practice, their value shows up in a few key places:

• Protecting your position early by sending notice to the executor and lodging a caveat where needed.
• Testing eligibility and merit before you commit to costs, so weak claims are identified early.
• Building the evidence in the form the Supreme Court expects under Practice Note SC Eq 7.
• Identifying notional estate and other assets that change the picture.
• Managing costs risk with clear written estimates and suitable fee options.
• Negotiating and preparing for mediation, where most matters are resolved.

An illustrative scenario (not a real client): an adult son, estranged from his father for eight years after a family dispute, is left nothing in a $1.2 million estate. He assumes he has no claim and waits ten months before seeking advice. With proper evidence of his modest income, health issues and the reasons for the estrangement, a claim like this may still be viable, but his delay leaves only weeks to give notice, gather evidence and file. Starting at month two instead of month ten would have made every step easier.

Will Contest Timeline at a Glance

When	Action
Weeks 1 to 4	Get advice, obtain a copy of the will, start the evidence checklist.
Before probate	Lodge a caveat if you are challenging the validity of the will.
Within 6 months	Give the executor written notice of your claim.
Months 6 to 12	Negotiate and, if needed, file a Summons and affidavit in the Supreme Court.
After filing	Exchange evidence and attend mandatory mediation. A final hearing only if it does not settle.

Frequently Asked Questions

What evidence do you need to contest a will in NSW?

For a family provision claim, you need evidence of your eligibility, your financial position (income, assets, debts and expenses), your relationship with the deceased and any contributions you made. For a validity challenge, medical records and evidence about how the will was prepared are usually central.

What are the grounds to contest a will in NSW?

The main grounds are inadequate provision (a family provision claim under Chapter 3 of the Succession Act 2006) and invalidity, which includes lack of testamentary capacity, undue influence, suspicious circumstances and failure to meet formal requirements.

Can I contest a will if I was estranged from the deceased?

Yes. Estrangement does not automatically prevent a claim. The Court considers the reasons for it, any attempts at reconciliation, the size of the estate and competing claims.

Can a grandchild contest a will in NSW?

Only in limited circumstances. A grandchild must generally show they were wholly or partly dependent on the deceased and that there are factors warranting the claim. Being a grandchild is not enough on its own.

Does the estate pay the legal costs of a will contest?

Not automatically. The Court has a discretion under section 99 of the Succession Act 2006 and may order costs from the estate, cap recoverable costs in smaller estates, or order an unsuccessful claimant to pay costs.

How long does a will contest take in NSW?

It depends on the complexity of the matter. Many claims resolve through negotiation or at mediation, while matters that proceed to a final hearing usually take considerably longer. Your lawyer can give you a realistic estimate for your case.

Final Thoughts: Get Advice Before the Mistakes Happen

Visit this website: Navigating Complex Family Law and Custody Disputes

Almost every mistake in this guide comes down to timing or evidence. Act early, confirm your eligibility, gather your financial and relationship evidence, and go in with a clear understanding of costs before you commit to a claim.