Finding out you have been left out of a loved one’s will can be both heartbreaking and stressful. Many people assume that a will is final and cannot be challenged, but this is not the case under New South Wales law. In fact, there are legal options available if you believe you have been unfairly excluded or left with too little from the estate. At Golottas Solicitors, we regularly assist clients in understanding their rights in estate disputes and guide them through the process of making a claim.
This guide explains what it means to be left out of a will in NSW, who can challenge a will, the steps involved, and how to act if you find yourself in this difficult position.
Understanding Wills and Inheritance in NSW
A will is a legal document that outlines how a person’s assets are to be distributed after their death. It can cover property, money, personal possessions, and even guardianship of children. While wills are designed to provide certainty, disputes are not uncommon. In blended families, for example, one child may be left out while others are included. In other cases, someone who relied heavily on the deceased for financial support may receive nothing.
The Succession Act 2006 (NSW) provides a safety net through the process of a family provision claim. This allows certain people to ask the court to change the distribution of the estate to ensure they are properly looked after.
Who Can Contest a Will in NSW?
Not everyone can challenge a will. The law only allows certain people, known as eligible persons, to make a family provision claim. These include:
- The spouse of the deceased
- The de facto partner of the deceased at the time of death
- A child of the deceased (including adopted children)
- A former spouse
- A stepchild who was dependent on the deceased
- A grandchild who was wholly or partly dependent on the deceased
- A person who lived in a close personal relationship with the deceased and relied on them for financial support
It is worth noting that not all relatives automatically qualify. For example, siblings or cousins are not usually eligible unless they can prove dependency. This strict eligibility test means it is essential to seek legal advice early.
What Is a Family Provision Claim?
A family provision claim is an application to the NSW Supreme Court asking for a fair share of an estate. The court does not disregard the will entirely but instead considers whether the deceased had a moral obligation to provide for the applicant.
The main goal is to ensure that close family members and dependants are not left destitute or without reasonable provision. For example, a child who was financially dependent on the deceased but excluded from the will may have a strong case.
How the Court Decides Family Provision Claims
When hearing a claim, the court examines a range of factors, including:
- The relationship between the applicant and the deceased
- The financial resources and needs of the applicant
- Whether the applicant was receiving support or maintenance from the deceased during their lifetime
- The size and nature of the estate
- The claims of other beneficiaries and dependants
- Any promises or statements the deceased made during their life
- Evidence of estrangement, family conflict, or other personal factors
Because no two cases are the same, outcomes can vary significantly. Some applicants may receive a significant share of the estate, while others may only be granted a smaller provision.
Common Reasons People Are Left Out of a Will
Being excluded from a will can happen for many reasons, such as:
- Estrangement: Long periods of family conflict or lack of contact
- Assumed financial security: The deceased believed the applicant did not need financial support
- Stepchildren overlooked: Children from blended families are sometimes unintentionally excluded
- Mistakes in drafting: Errors in wording or failure to update a will
- Influence of others: In some cases, new partners or family members may pressure the deceased to exclude others
Regardless of the reason, the law provides a pathway for those who believe they have been unfairly treated.
Time Limits for Contesting a Will in NSW
In New South Wales, you generally have 12 months from the date of death to file a family provision claim. This deadline is strictly enforced. Extensions are possible, but only if you can prove special circumstances, such as not knowing about the death until later.
Delays can be costly. If you are considering contesting a will, you should contact an experienced estate litigation solicitor as soon as possible.
The Process of Contesting a Will
Step 1: Seek Legal Advice
Your first step should always be to speak with an experienced solicitor. At Golottas Solicitors, we assess your eligibility, explain the process, and outline your chances of success.
Step 2: Gather Evidence
To support your claim, you will need documents showing your relationship with the deceased, your financial position, and any evidence of dependency or promises made to you.
Step 3: Mediation and Negotiation
Most family provision disputes in NSW are settled at mediation rather than going to trial. Mediation gives everyone a chance to negotiate a fair outcome without the stress and cost of court hearings.
Step 4: Court Proceedings
If mediation fails, your solicitor will file court documents, and the matter will proceed to a hearing. The judge will then decide whether you should receive provision from the estate.
Costs of Contesting a Will
One concern many people have is whether they can afford to contest a will. The costs can vary depending on the complexity of the case. In many situations, the court may order that legal costs be paid from the estate, especially if the claim was reasonable. However, unsuccessful claims may leave you liable for some costs.
At Golottas Solicitors, we are upfront about costs and explore options such as fixed-fee services where possible.
Case Examples: When Claims Succeed
- Excluded Child: A son left out of his mother’s will successfully claimed provision because he was unemployed and had significant health issues, while the estate was large enough to accommodate all beneficiaries.
- Stepchild Dependency: A stepchild who had lived with and been financially supported by the deceased for over 15 years was granted provision despite not being biologically related.
- Former Spouse: A divorced spouse who continued to receive maintenance from the deceased was able to make a successful claim even though the will excluded them.
These examples show that every case turns on its unique facts.
Alternatives to Contesting a Will
Not all disputes need to end up in court. Other options include:
- Negotiated settlements with executors or other beneficiaries
- Challenging the validity of the will if you believe it was made under undue influence or while the deceased lacked mental capacity
- Mediation facilitated by experienced solicitors
Exploring alternatives can save time, money, and family relationships.
How Golottas Solicitors Can Help
At Golottas Solicitors, we offer clear advice and strong representation in all estate disputes. We can help you:
- Assess your eligibility to make a family provision claim
- Explain your rights under the Succession Act 2006 (NSW)
- Negotiate settlements during mediation
- Represent you in the NSW Supreme Court if required
- Protect your interests while handling sensitive family matters with care
Our goal is to secure the best possible outcome for you while minimising stress.
Frequently Asked Questions About Being Left Out of a Will in NSW
Can I contest a will if I was completely left out?
Yes. If you are an eligible person under the Succession Act 2006 (NSW) and you believe you have not been adequately provided for, you can make a family provision claim even if you were not included at all in the will. The court will consider your relationship with the deceased, your financial needs, and the size of the estate.
How much does it cost to contest a will in NSW?
The costs vary depending on the complexity of the case. In many situations, if your claim is reasonable, the court may order your legal costs to be paid from the estate. However, if your claim is unsuccessful, you may be ordered to cover some or all of the costs. At Golottas Solicitors, we provide clear cost estimates before you begin.
Can stepchildren contest a will in NSW?
Yes, but only if they can prove dependency. A stepchild who was financially supported or raised by the deceased may be considered an eligible person for the purpose of a family provision claim.
How long does it take to resolve a contested will?
Most cases are resolved within 6 to 12 months, often through mediation. If the matter proceeds to a full trial, it can take longer, depending on the court’s schedule and the complexity of the estate.
Do I need to go to court to contest a will?
Not always. Many contesting a will NSW cases are resolved through negotiation or mediation. Going to court is usually the last step if all other attempts to resolve the dispute have failed.
Can grandchildren contest a will in NSW?
Yes, but only if they were dependent on the deceased at some stage. For example, if a grandchild lived with the deceased and relied on them financially, they may be able to make a claim.
What if the will was unfair but valid?
You do not need to prove the will is invalid to make a family provision claim. Even if the will is legally valid, the court can still make changes to ensure that eligible persons receive proper provision.
Can siblings contest a will?
Generally, siblings cannot contest a will unless they were financially dependent on the deceased. If dependency can be shown, they may qualify as an eligible person.
What happens if the estate has already been distributed?
If you act quickly, the court can place a hold on the distribution of the estate while your claim is being considered. This is why it is critical to seek legal advice immediately after learning you have been left out of a will.
What happens if there is no will?
If there is no will, the estate is distributed according to intestacy laws. Eligible relatives such as spouses, de facto partners, and children usually inherit first. However, if you are dependent on the deceased and feel the intestacy distribution is unfair, you may still be able to make a claim.
Conclusion
Being left out of a will in NSW can feel devastating, but you are not without options. If you believe you should have been included, you may be able to make a family provision claim under the Succession Act 2006. Acting quickly and seeking expert legal advice is essential to protect your rights.
At Golottas Solicitors, our experienced team helps clients across Sydney and New South Wales with estate disputes, contested wills, and probate matters. We understand the emotional and financial pressures these situations create and are committed to guiding you through the process with sensitivity and strength.
If you have been left out of a will and need advice, contact Golottas Solicitors today. We are here to help you achieve a fair outcome.
