Left out of a NSW will and the twelve month deadline

A person left out of a NSW will should establish the correct claim and deadline promptly. A family provision application asks for adequate support from an estate; it is different from alleging that the will is invalid. The distinction affects both the evidence and the procedure.

Updated October 2026

Eligibility does not guarantee a share

Section 57 of the Succession Act 2006 (NSW) identifies eligible applicants. Sections 59 and 60 govern the Court’s decision and relevant considerations. Depending on the category of applicant, additional requirements apply. The Court examines adequate provision for proper maintenance, education or advancement in life, rather than imposing equal inheritance for every relative. Financial circumstances, relationships, contributions and competing claims can all affect the result.

The NSW clock usually starts at death

Under s 58, an application generally must be made within 12 months after the deceased’s death, subject to the statutory exceptions. Do not calculate the ordinary period from the grant of probate. A letter to the executor or a probate caveat does not itself constitute the required family provision application. Seek immediate advice if the deadline is close or assets may be distributed.

Why a promise or agreement needs careful analysis

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 concerned a widow’s family provision claim and an agreement made in contemplation of marriage. The High Court’s treatment of adequate provision remains influential, but the case applied the former Family Provision Act 1982 (NSW). Today’s Succession Act must be applied. An informal family understanding should not be assumed either to settle a claim or to defeat one conclusively.

Prepare the evidence that matters

Obtain the will, date of death, any grant details and an estimate of estate assets and liabilities. Prepare your income, expenses, health information and a chronology of the relationship. Where family members or records are in China, arrange reliable translations early. An informed assessment can identify whether negotiation, mediation or a court application is proportionate to the likely benefit and cost.

Key legislation and cases

Author: Davis Kwok

Last updated: October 2026

Jurisdiction: New South Wales, Australia

Disclaimer: This article provides general information only and does not constitute legal, financial or tax advice. The law may change and its application depends on individual circumstances. You should obtain professional advice before acting on the information contained in this article.