How to contest an estate without a Will in NSW

Can you contest an estate in NSW when there is no will?

Yes. The right to obtain from an estate in NSW does not depend on the existence of a valid will. It arises upon death.

Who receives provision when there is no will?

When a person dies without a valid will, they die intestate. The estate is then distributed according to the rules of intestacy, generally in the following order:

• Spouse
• Children
• Parents
• Siblings
• Grandparents
• Aunts and uncles

The size of each entitlement can vary, particularly where there are blended families or multiple spouses.

Who can contest an intestate estate?

Contesting an intestate estate is no different from contesting an estate with a will. If you are an eligible person under the Succession Act 2006 (NSW), contesting an estate without a will may involve bringing a family provision claim.

Eligible persons include:

• spouses and de facto partners,
• children,
• former spouses (in some circumstances), and
• stepchildren, grandchildren, or members of the household (in some circumstances).

To succeed, you must show that you were not left adequate provision for your proper maintenance, education or advancement in life. What does the community expect of a spouse, parent, grandparent in the circumstances…to provide a house, a deposit for a house, to pay for back surgery etc.

If you are not a spouse (including de facto) or child, you must also demonstrate a relationship with the deceased that justifies provision.

How do you contest an estate?

The process is the same whether or not there is a will. A practical approach is:

1. Act promptly

You have 12 months from the date of death to commence proceedings. Early negotiation is strongly encouraged and often more cost-effective. It could be the difference between $20,000 and $120,000 in legal costs.

2. Plan

Obtain legal advice to assess the strength of your claim and identify the evidence required.

3. Prepare

Gather evidence to support your claim, including:

• your financial position and needs,
• evidence of dependency (if relevant), and
• evidence of your relationship with the deceased.

4. Pursue

Send a detailed letter of claim to the estate’s administrator, setting out:

• the legal basis of your claim,
• supporting evidence, and
• a proposed settlement (where possible).

Allow a reasonable time for response (e.g. 28 days), followed by a further short period if needed. If no resolution is reached, proceedings should be filed within the limitation period.

Key legal points

• You can bring a claim whether or not probate or letters of administration have been granted,
• a claim must usually be filed within 12 months of death, unless the Court grants leave or the executor/administrator consents,
• the application is taken to be made when filed with the Court, and
• if there is no will, someone needs to apply for letters of administration to administer the estate under the intestacy rules.

How we can help

We can:

• advise you on your eligibility and prospects,
• prepare and send a letter of claim,
• represent you in negotiations,
• draft and review settlement documents, and
• commence and conduct Supreme Court proceedings if required.

If you are considering a claim, it is important to act early, be well prepared, and approach the process strategically.