Contesting a Will vs Challenging the Validity of a Will in NSW
People often say they want to “contest a will”, but they may actually mean one of two very different legal steps.
In NSW, the difference matters because the legal test, evidence, time limits, and likely outcomes can be completely different.
This article explains the difference in plain language, with practical examples.
What people usually mean by “contesting a will”
In everyday language, “contesting a will” often means:
- “I’ve been left out.”
- “I didn’t receive enough.”
- “The distribution is unfair given my relationship with the deceased.”
In NSW, that is usually a Family Provision Claim under the Succession Act 2006 (NSW).
A Family Provision Claim does not necessarily say the will is invalid. It accepts that the will may be legally valid, but argues that the will (and the estate) did not make adequate provision for the claimant’s proper maintenance, education, or advancement in life.
Typical Family Provision Claim scenarios
- An adult child is left little or nothing, while a new partner receives most of the estate.
- A long-term partner receives less than expected, particularly in blended family situations.
- A dependent stepchild or grandchild is excluded despite clear financial reliance.
- A person provided care, support, or contributions, but receives no recognition in the will.
What the court can do
If successful, the court can order further provision to be paid to the claimant out of the estate (or sometimes from property connected to the estate, depending on the circumstances).
The will may remain valid, but the distribution can be altered by court order.
What it means to challenge the validity of a will
Challenging the validity of a will is different. It says, in effect:
“This document should not be treated as the deceased’s valid will.”
A validity challenge can result in the will being declared invalid, which can dramatically change who receives the estate.
If the will is set aside, the estate may pass under:
- an earlier valid will, or
- the intestacy rules (if there is no earlier valid will).
Common grounds for challenging validity in NSW
Validity challenges commonly involve one or more of the following issues:
1) Lack of testamentary capacity
The deceased may not have understood what they were doing when the will was made, for example due to dementia or significant cognitive impairment.
2) Undue influence
The will may not reflect the deceased’s true wishes because someone exerted improper pressure or control.
3) Fraud or forgery
The will may have been fabricated, altered, or signed in circumstances involving deception.
4) Lack of knowledge and approval
Even if the will looks properly signed and witnessed, it may not reflect what the deceased believed they were signing, especially where there are suspicious circumstances.
5) Execution problems
The will may not have been executed in accordance with legal requirements (although there are provisions in NSW that can sometimes allow an informal document to operate as a will in limited circumstances).
Typical validity challenge scenarios
- A “new” will appears late, heavily favouring one person, with a major change from long-standing intentions.
- A will is prepared when the deceased was very unwell or cognitively impaired.
- A beneficiary arranged the lawyer, attended the appointment, or controlled access to the deceased.
The practical difference in outcomes
If you “contest” a will (Family Provision Claim)
- You are usually asking for a larger share (or some provision) from the estate.
- The will may still stand, but the court can order additional provision.
- The dispute often focuses on relationship, need, competing claims, and the size of the estate.
If you challenge validity
- You are arguing the will should be treated as not legally effective.
- If you succeed, the estate may pass under an earlier will or intestacy.
- The dispute often turns on evidence about medical capacity, suspicious circumstances, and how the will was prepared and signed.
Which one should you bring?
Sometimes the right approach is clearly one or the other.
But in practice, some cases justify both:
- A validity challenge (for example, capacity concerns), and
- A Family Provision Claim (if you are eligible and have a strong need or competing claim argument).
This is especially common where there is a late will, blended family conflict, or concerns about influence over an elderly testator.
The best strategy depends on the facts, because each pathway has different risks, evidence requirements, and settlement leverage.
Time limits in NSW
Time limits are critical and can be unforgiving.
- Family Provision Claims in NSW must be filed within 12 months of the date of death. The Court can extend that time in limited circumstances, but extensions are discretionary and you should assume the deadline will be strictly applied.
- Validity disputes have practical timing issues, particularly once probate is granted or the estate is being administered.
If you delay, you can lose options, evidence can disappear, and estate assets can be distributed.
Quick comparison
Contesting a will (Family Provision Claim):
- Accepts the will might be valid
- Says the will failed to make adequate provision
- Outcome: court adjusts provision out of the estate
Challenging validity:
- Says the will should not be treated as the deceased’s will
- Focuses on capacity, undue influence, fraud, execution, and similar issues
- Outcome: will set aside, earlier will or intestacy applies
How Phillip Briffa approaches these disputes
Phillip Briffa is a Sydney-based estate litigation lawyer whose practice is focused on will disputes and Family Provision Claims in NSW. Many matters turn on early, forensic analysis of the available evidence, including medical records, solicitor file notes, and the circumstances of execution.
In a lot of cases, the outcome is determined by identifying the real pressure points early, then using them to drive a negotiated resolution, or preparing the case for the Supreme Court of NSW where necessary.
Speak with a leading NSW will dispute lawyer
Confidential Case Review
If you have been excluded from a will, you believe the provision made for you is inadequate, or you have concerns about whether a will is valid, it is important to obtain advice early.
A confidential, structured assessment can clarify:
- whether you are eligible to bring a Family Provision Claim
- whether there is a sound basis to challenge the will’s validity
- the evidence required and the best strategy moving forward
Call (02) 8066 9990 and send us an email at mail@pbritz.com.au to book a confidential case review with Phillip Briffa.
