What Can I Do About an Unfair Will in NSW?

When a loved one passes away, discovering you've been left out of their will—or received what feels like an insufficient or unequal share—can be deeply upsetting. Feelings of unfairness are common, especially when family expectations clash with the final wishes outlined in the document. The good news is that in New South Wales, the law provides options for eligible people to challenge what they see as an unfair will.

Under the Succession Act 2006 (NSW), certain family members and dependents can make a Family Provision Claim to seek further provision from the deceased estate. This article explains what makes a will "unfair" in the eyes of the law, who can contest it, real-world examples, and the key steps involved.

What Is an Unfair Will in NSW?

In New South Wales, there's a strong social and legal expectation that a testator (the person making the will) will make adequate provision for their closest dependents where the estate allows. This typically includes:

• A spouse or de facto partner (including same-sex partners)

• Minor children

• Other vulnerable or financially dependent family members

  
  

Beyond these legal obligations, many adult children expect to be remembered in their parents' will, even if they're no longer financially reliant on them. When a will fails to meet these expectations—through exclusion, minimal provision, or unequal shares that ignore individual circumstances—it may be viewed as unfair.

Importantly, "unfair" doesn't just mean "not equal." The court focuses on whether the will made adequate provision for proper maintenance, education, and advancement in life, considering the applicant's needs and the size of the estate.

Who Can Contest an Unfair Will in NSW?

Not everyone can challenge a will. You must qualify as an eligible person under section 57 of the Succession Act 2006. Eligible categories include:

• The husband or wife of the deceased at the time of death

• A de facto partner (including same-sex partners) living with the deceased at the time of death

• A biological or adopted child of the deceased

• A former husband or wife of the deceased

• A grandchild or someone who was a member of the deceased’s household, and who was at least partially dependent on the deceased

• A person who was living in a close personal relationship with the deceased immediately before their death

  
  

If you fall into one of these groups and believe the will didn't make adequate provision for you, you may have grounds for a Family Provision Claim.

How to Contest an Unfair Will: The Family Provision Claim Process

To dispute an unfair will in NSW, you need to apply to the Supreme Court of NSW for a Family Provision Order. This doesn't usually invalidate the entire will but can adjust how the estate is distributed to provide more for you.

The process generally involves:

1. Gathering evidence of your eligibility, relationship with the deceased, financial needs, and why the provision (or lack thereof) is inadequate.

2. Filing a summons and supporting affidavits in the Supreme Court.

3. Participating in court-managed mediation (common in these cases) or proceeding to a hearing if needed.

   
   

Critical Time Limit: You generally have only 12 months from the date of the deceased's death to file your claim. Missing this deadline can bar your application unless the court grants an extension for sufficient cause (such as not knowing about the death or the will's contents). Acting quickly is essential—consult a lawyer experienced in estate disputes as soon as possible.

Examples of Unfair Wills in NSW

Here are common scenarios where a will might be successfully challenged:

1. The Estranged Child

A parent might exclude or leave only a token amount to an estranged child, believing they’re justified due to lack of contact or past conflicts. However, NSW law places greater emphasis on the financial needs of the child than on the closeness of the relationship. An estranged adult child can still make a successful Family Provision Claim if they can demonstrate need and that adequate provision wasn’t made.

2. Equal Shares That Ignore Individual Needs

Some parents aim for strict equality by dividing the estate equally among children. This can be deemed unfair if it disregards differing circumstances. For example, if one child has a disability that prevents full-time work and creates greater financial need, the court may order an unequal distribution to address that vulnerability.

3. Failure to Recognise Contributions

A will may feel unfair if it overlooks significant contributions one person made to the deceased’s estate or welfare. An adult child who helped build or run the family business, for instance, may have a stronger moral claim to a share of its value than a sibling who made no such contribution.

4. Conditional Bequests

Testators sometimes attach conditions to gifts (e.g., a granddaughter receives money only after graduating university). Courts have upheld reasonable conditions in many cases. However, they may strike down conditions that violate public policy, such as requiring a beneficiary to divorce their spouse.

How the Supreme Court Assesses a Family Provision Claim

When deciding whether to make an order for further provision, the court considers a range of factors under section 60 of the Succession Act, including:

• The nature and closeness of the relationship between the applicant and the deceased

• The applicant’s financial needs and resources compared to those of other beneficiaries and claimants

• Any special relationship or contributions the applicant had with the deceased

• Whether the deceased had a moral obligation to provide more than what was left in the will

• The size and nature of the estate

• Any other relevant circumstances

  
  

The court aims for a fair and just outcome based on the specific facts of each case.

Important Considerations Before Contesting a Will

• Costs: Family Provision Claims can be expensive. While the estate often covers some costs, unsuccessful applicants may face paying their own legal fees—or even contributing to the other side’s costs.

  
  

• Mediation: Many claims resolve through court-ordered mediation, avoiding a full trial.

  
  

• Seek Professional Advice: Every situation is unique. An experienced wills and estates lawyer can assess the strength of your claim, help gather evidence, and guide you through the tight timelines.

  
  

Final Thoughts

Being left out of a will or receiving what feels like an unfair share can cause significant emotional and financial stress. Fortunately, NSW law recognises that family obligations don’t always end with death. If you believe you’ve been inadequately provided for and you’re an eligible person, a Family Provision Claim may help you secure a more appropriate share of the estate.

Time is critical—don’t delay. Contact a specialist contested estates lawyer promptly for personalised advice tailored to your circumstances. Early action can protect your rights and increase the chances of a favourable resolution.

This article is for general information only and does not constitute legal advice. Laws can change, and outcomes depend on individual facts. Always consult a qualified legal professional for advice specific to your situation.