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After a person dies questions can arise about whether the Will is a valid legal document or whether it has included and adequately provided for the right people.

How to know if a Will is a valid legal document

For a Will to be a valid legal document it must satisfy specific requirements:

• It must be in writing (typed or handwritten).
• It must be signed by the Will-maker.
• It must be witnessed by two independent adults, with everyone present at the same time.
• The Will-maker must have testamentary capacity.

There may be questions about whether the Will-maker actually signed the document (cases of fraud or forgery).

There may be concerns that a witness was not independent as they benefit from the Will or they may have signed on a different day to the Will-maker.  This might not comply with the formal requirements of a valid Will.

You may have concerns that the Will-maker did not have testamentary capacity because of illness or injury.  If the Will-maker suffers dementia or has cognitive problems (like issues with memory or concentration), or if they are on strong medication that causes confusion, it will be important to investigate whether the will-maker was capable of giving instructions to make a Will and fully understand the nature and extent of their estate and who should benefit from it.

If the Will-maker struggles to read, or if English is their second language, it may be necessary to consider whether they fully understood and approved the contents of the Will before they signed it (knowledge and approval).

Sometimes, family members or executors of the Will may be concerned that the Will-maker may have been put under pressure to prepare the Will or give benefits to specific people.  These cases of undue influence or suspicious circumstances require investigation as the Will might not genuinely reflect the Will-maker’s wishes.

If you are worried that the Will-maker:

• May not have signed the Will;
• May not have been able to read or understand the Will;
• May have been put under pressure to prepare the Will;
• May have been suffering from a medical condition or illness causing confusion or uncertainty; or
• The witnesses to the Will may not have been independent;

It is important to get legal advice about how best to investigate whether the Will is a legally valid document or should be contested.

It is important to understand that challenging the validity of a Will is different from making a family provision claim. A validity challenge argues that the Will should not be recognised as the deceased’s lawful Will. A family provision claim accepts that the Will is valid but argues that it does not make adequate provision for an eligible person.

How to Contest a Will because you have not been included or given a fair share

In these situations, the Will may be valid but a person might argue that “adequate provision” has not been provided in the Will (either too small a share or none at all).

This is called a family provision claim.  The purpose of this type of claim is to ensure that those people who had a close relationship with the deceased are left with proper provision for their maintenance, education or advancement in life.

Under NSW legislation, Succession Act 2006 (NSW), people who may be ‘eligible’ to make a claim include:

• a spouse;
• a de facto partner;
• a child (either a minor or an adult);
• a former spouse;
• members of the household (even if not related);
• some grandchildren; and
• people who were in a close personal relationship with the deceased.

Not everyone who is disappointed by a Will is entitled to make a claim. It is important to get legal advice to see whether you fall within one of these categories of eligibility.

When determining a family provision claim, a wide range of factors are important, including:

• the claimant’s financial circumstances and future needs;
• the nature of their relationship with the deceased;
• the size and nature of the estate;
• any obligations or responsibilities owed by the deceased to the claimant;
• the wishes and testamentary intentions of the deceased;
• contributions made to the deceased’s welfare or estate; and
• the competing interests of other beneficiaries.

Every case depends on its own facts. There is no automatic entitlement to receive part of an estate.

It is important to get legal advice if you think you may have a claim as time limits apply.  In New South Wales a family provision claim generally must be commenced within 12 months of the date of death of the deceased (unless special circumstances apply).

This article was published on 6 November 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au).