Contesting a will and family provision claims in New South Wales

• Succession Act 2006 (NSW) (NSW)

  The principal Act. Chapter 3 contains the family provision scheme: section 57 lists eligible persons, section 58 sets the 12 month time limit from the date of death, section 59 sets out when a family provision order may be made (including the extra requirement for a former spouse, a dependent grandchild or household member, and a person in a close personal relationship to show factors warranting the application), and section 60 lists the matters the Court may consider. Part 3.3 contains the notional estate powers. Sections 93 and 94 protect a legal representative who distributes in accordance with their requirements, and section 98 requires the Court to refer an application to mediation unless there are special reasons. Chapter 2 deals with wills and Chapter 4 with intestacy.

• Probate and Administration Act 1898 (NSW) (NSW)

  Governs grants of probate and letters of administration, the powers and duties of executors and administrators, notices of intended distribution, and the Court's power to revoke a grant.

• Supreme Court Rules 1970 (NSW) (NSW)

  Part 78 governs probate practice, including Division 10 on caveats against a grant (rules 66 to 74). Part 12 rule 1A and Schedule J contain the procedural requirements for family provision claims, including joining the administrator as defendant, notices to eligible persons and the administrator's affidavit.

• Uniform Civil Procedure Rules 2005 (NSW) (NSW)

  The general civil procedure rules that apply to contested estate proceedings, including the rules on mediation (Part 20), evidence (Part 31), subpoenas (Part 33) and costs (Part 42, including maximum costs orders under rule 42.4). Form 141 is the approved form of caveat.

• Civil Procedure Act 2005 (NSW) (NSW)

  Contains the overriding purpose of the just, quick and cheap resolution of proceedings (section 56), the Court's power to refer proceedings to mediation (Part 4), and its discretion as to costs (section 98).

• District Court Act 1973 (NSW) (NSW)

  Section 134 gives the District Court the same jurisdiction as the Supreme Court to make a family provision order under Chapter 3 of the Succession Act 2006, but it cannot make an order for provision exceeding $250,000.

• Superannuation Industry (Supervision) Act 1993 (Cth) (CTH)

  Commonwealth law regulating superannuation death benefits. Superannuation is usually not an estate asset, but in New South Wales a death benefit that passes because of the deceased's membership of a fund can be a relevant property transaction under section 76(2)(e) of the Succession Act 2006 and may in some circumstances be designated as notional estate.

• Supreme Court of New South Wales, Equity Division

  Grants, revokes and refuses probate, and hears family provision claims and contested probate proceedings in its Probate and Family Provision List. The District Court also has jurisdiction to make a family provision order, but only where the provision ordered would not exceed $250,000 (District Court Act 1973 s 134).

• Probate and Family Provision List

  The specialist case management list governed by Practice Note SC EQ 07, issued on 13 June 2024 and in force from 17 June 2024. The Registrar in Probate manages probate proceedings in a Tuesday list and family provision applications in a Thursday list, with a judge ordinarily available for referrals.

• Registry of the Supreme Court - Probate Registry

  Processes applications for grants of probate and letters of administration and receives caveats. Notices of intended applications for a grant, notices of intended distribution and notices of filing of accounts are published on the NSW Online Registry, which has a free public search.

• NSW Trustee and Guardian

  The state trustee. Prepares and stores wills, acts as executor where it is appointed, can administer deceased estates, and publishes guides for executors and beneficiaries.

• NSW Court of Appeal

  Hears appeals, and applications for leave to appeal, from decisions of single judges of the Supreme Court, including family provision and probate judgments.

1. 01Confirm eligibility and the deadline

   Check that you fall within one of the categories of eligible person in section 57, find out the date of death, and note the date 12 months after it. Search the free online probate notices on the NSW Online Registry to see whether anyone has published a notice of intention to apply for a grant.

   Typical timeframe: Start as soon as possible after the death

2. 02Notify the executor and request information

   Write to the executor or their solicitor giving signed written notice of your intended claim, and ask for a copy of the will, the grant and an inventory of the estate's assets and liabilities. Notice does not extend the deadline. It stops a protected distribution under section 93 only until 12 months after the death: after that, an executor who has followed section 93 can distribute unless they have written notice that proceedings have been commenced or have been served (section 94(4) and (5)).

   Typical timeframe: Early, well before the 12 month deadline

3. 03Attempt settlement before filing

   Exchange financial information and consider a without prejudice offer or a voluntary mediation. Settling before filing can avoid court fees and hearing costs, but negotiations do not stop the 12 month period running.

   Typical timeframe: Only while time remains before the 12 month deadline

4. 04File a summons in the Equity Division

   File a summons stating the date of death. With it you must file and serve an affidavit adapted from Annexure 1 to Practice Note SC EQ 07, a notice of eligible persons, and an affidavit estimating your costs up to the end of mediation, including any uplift fee. The executor or administrator must be joined as defendant, and no one else may be joined without sufficient reason; the administrator then serves a notice of the claim on the spouse, children, beneficiaries and other possible eligible persons. If you file at the deadline to preserve your rights, the two affidavits and the notice must be filed and served no later than 5 working days before the first directions hearing, unless the Court orders otherwise.

   Typical timeframe: Before the 12 month deadline

5. 05Directions and the executor's affidavit

   The summons is returnable before the Registrar in Probate in the Thursday list. The Registrar gives directions so the parties can make a realistic assessment of their cases. The executor must make an affidavit about the estate, and the Registrar may direct that it set out the estate's assets and liabilities, any distributions, the gross distributable estate, expenses paid, any commission sought, other possible eligible persons, beneficiaries raising competing claims, and an estimate of the executor's costs to mediation. If the claim is combined with a challenge to the will, a disclosure statement under paragraph 19 of the Practice Note is also required.

   Typical timeframe: First listing no later than the first Thursday after 28 days from filing

6. 06Mediation

   The Court must refer a family provision application to mediation unless there are special reasons not to. Mediations are court-annexed unless otherwise ordered or agreed, with no charge for the mediator or the venue, are listed on the presumption of a half day, and the parties are expected to attend in person unless there are exceptional circumstances.

   Typical timeframe: At the earliest practicable time after filing

7. 07Hearing and judgment

   If the claim does not settle, the Court sets a timetable to prepare for a final hearing before a judge, which may include updating affidavits and costs affidavits. The judge decides whether to make a family provision order, its terms, and who pays the costs.

   Typical timeframe: Varies with the Court's list and the complexity of the case

Costs in New South Wales estate litigation are in the Court's discretion. The Court can order that costs be paid out of the estate or notional estate, and an executor can generally recover costs reasonably and properly incurred from the estate, but costs do not always come out of the estate: an unsuccessful plaintiff can be ordered to pay their own costs and the executor's costs. Practice Note SC EQ 07 says estate and court resources should not be used out of proportion to the size of the estate, and that orders may be made capping recoverable costs, including where the net distributable estate (excluding the costs of the proceedings) is less than $1,000,000. Under a separate Supreme Court protocol dated 21 July 2025, parties to probate proceedings, such as a challenge to a will's validity, must tell the Court in writing if the net estate is under $1.5 million, unless the Court orders otherwise, and the Court may then make a maximum costs order. Your costs affidavit should identify any uplift fee in a conditional costs agreement. Court fees from 1 July 2026 for an individual include $1,443 to file a summons, $57 to lodge a caveat, $2,879 to allocate a hearing date, and daily hearing fees from the second day ($1,148 a day for days 2 to 4). Check the Court's current fee schedule before you file. You can apply for a fee to be waived, remitted or postponed.