How Can You Contest a Will in NSW From Overseas or Interstate?

NSW Jurisdiction Over Estates With Cross-Border Elements

The Supreme Court of NSW has jurisdiction over a family provision claim where the deceased was domiciled in NSW at the date of death, or where the deceased owned property in NSW. Domicile is generally determined by origin or by where the person made their habitual residence.

Under section 64 of the Succession Act 2006 (NSW), the Court can make orders affecting property outside the jurisdiction in certain circumstances, though the practical reach of those orders depends on the law of the place where the property is located.

Where the deceased was not domiciled in NSW, the Court’s reach is generally limited to immovable property situated in NSW. The location of the claimant is not relevant. An eligible person in London, Auckland, Singapore, or Perth has the same standing to claim as a Sydney claimant.

More: Can I Challenge or Contest a Will After Probate?

Time Limits Apply Regardless of Where You Live

The 12-month time limit applies to every claimant equally, regardless of where they live:

• The 12-month rule. Under section 58(2) of the Succession Act 2006 (NSW), an application for a family provision order must be made within 12 months of the date of death.
• The clock starts at death, not probate. The deadline runs from the date the deceased died, not from when probate was granted. Many overseas claimants miss this critical distinction.
• Extensions on sufficient cause. The Court may extend time if the claimant shows sufficient cause for the delay. Simple ignorance of the law is rarely accepted.
• Extensions by consent. Since the July 2018 amendment to section 58, an extension is possible if all parties consent. In practice, defendants rarely agree.
• Late notification overseas. Where an overseas claimant finds out about the death late, that delay may form part of a sufficient cause argument, but is not automatic.
• File before the deadline. Filing the summons within 12 months preserves the claim. Negotiations and further evidence can continue afterwards.

If you are unsure whether you are still in time, the safest course is to file within the 12-month window while you continue to gather evidence.

How to Make the Claim From Overseas or Interstate

A claim is commenced by filing a summons and supporting affidavits in the Supreme Court of NSW. The process is the same for all claimants, but practical steps differ for non-resident claimants.

Engage a NSW Lawyer Early

Your NSW-qualified solicitor becomes your address for service, manages the court file, and coordinates with you across time zones.

Confirm Eligibility Under Section 57

Eligibility does not depend on where you live. You must fit a category in section 57 of the Succession Act 2006 (NSW), such as spouse, child, de facto partner, dependent grandchild, or close personal relationship.

Gather Evidence Across Borders

Affidavits must set out the relationship with the deceased, financial position, and contribution history. Overseas claimants need to translate foreign documents, convert currency for income and asset disclosures, and obtain medical or financial records from local providers.

File the Summons in Time

The summons, plaintiff’s affidavit, and costs affidavit are filed at the Supreme Court Registry in Sydney. Filing fees apply at the same level for overseas and local claimants.

Comply With Practice Note SC Eq 7

The matter enters the Probate and Family Provision List. Court-annexed mediation is the default. Overseas claimants are expected to attend personally where practicable, including by video link with the Court’s leave.

Service of Documents Across Borders

Once a claim is filed, the defendant must be served. Where the defendant is interstate or overseas, special service rules apply. The Supreme Court of NSW foreign documents page sets out the framework:

• Interstate service under the SEPA. Section 15 of the Service and Execution of Process Act 1992 (Cth) allows the initiating process of any State or Territory court to be served anywhere in Australia. Under section 16, service is only effective if a prescribed notice is attached to the documents at the time of service.
• Overseas service without leave. Under UCPR Rule 11.4 and Schedule 6 of the Uniform Civil Procedure Rules 2005, documents commencing proceedings can be served overseas without leave of the Court in certain categories, including matters about a deceased estate connected to NSW.
• Overseas service with leave. Where the case does not fit Schedule 6, the plaintiff must apply to the Court for leave to serve overseas under UCPR Rule 11.5.
• Hague Convention service. Many countries are signatories to the Hague Service Convention. UCPR Part 11A sets out the procedure, including a written request to the Registrar to forward documents through the Attorney General’s Department.
• Service in New Zealand. The Trans-Tasman Proceedings Act 2010 (Cth) governs service of NSW process in New Zealand and the recognition of judgments. Special rules apply, including a longer time for appearance.
• Service in accordance with foreign law. UCPR Rule 11.8AC permits service outside Australia under the law of the country where service is effected, not just by personal service.

Costs of overseas service are borne by the plaintiff. Your lawyer should obtain an early estimate.

Giving Evidence From Overseas or Interstate

A family provision hearing typically requires the plaintiff to give evidence and be cross-examined. The Court takes a practical view of evidence from overseas, but planning is essential.

Affidavits Sworn Abroad

An affidavit sworn outside Australia must be witnessed by a person authorised under NSW law. Authorised witnesses overseas include Australian consuls or vice-consuls, notaries public of the foreign country, and certain Australian lawyers practising abroad.

Video Link Evidence

Cross-examination can be conducted by audio-visual link with the Court’s leave. Video link is routinely granted for cogent reasons such as cost of travel, work commitments, or health constraints. Your lawyer applies in advance and arranges a suitable venue overseas.

Documentary Evidence in Foreign Languages

Documents in a language other than English must be translated by an accredited translator and accompanied by an affidavit of the translator. Original documents are retained for inspection.

Witnesses Located Overseas

Lay witnesses such as family or treating professionals may give evidence by affidavit and by video link. Witness summonses cannot be issued overseas in the same way as interstate, so cooperation must be secured in advance.

Personal Attendance at Mediation and Hearing

Practice Note SC Eq 7 expects personal attendance at mediation, absent exceptional circumstances. Hearings are heard in open court in Sydney. Many overseas claimants travel for the hearing itself.

More: How to Stop Someone Contesting a Will in Australia

Costs and Practical Issues for Overseas or Interstate Claimants

Cross-border claims carry the same legal risks as any claim, plus additional practical costs. Plan for these from the outset:

• NSW legal fees. Your NSW lawyer’s fees are charged in Australian dollars. Fee structures, including no-win, no-fee agreements, are available in eligible cases.
• Currency and exchange risk. Estate distributions and costs orders are paid in Australian dollars. Exchange rate movements over a 12 to 24-month case can materially affect the net result for overseas claimants.
• Service disbursements. Translation costs, Hague Convention fees, courier and consular fees add up. Budget for these in addition to legal fees.
• Tax in your home country. Australian distributions may be taxable in your home jurisdiction. Obtain local tax advice before settlement to confirm the after-tax position.
• Travel and accommodation. Even where attendance is by video link, claimants often travel to Sydney for mediation or a hearing. Factor in flights, accommodation, and time off work.
• Communication and time zones. Cross-border cases run on Sydney time. Your lawyer should establish reliable communication channels for evidence review and settlement instructions.

Speak to a Cross-Border Wills and Estates Lawyer

If you are overseas or interstate and believe you should have received more from an NSW estate, call Empower Wills and Estate Lawyers on 1300 414 844. Our specialist practice acts for overseas and interstate claimants and executors in NSW family provision and probate matters. We offer flexible fee structures, sliding scales, payment plans, pensioner discounts, and no-win, no-fee agreements in eligible cases. Clients remain liable for disbursements and barrister’s fees regardless of outcome.

Frequently Asked Questions

Can I contest a NSW will if I have never lived in Australia?

Yes. Eligibility under section 57 of the Succession Act 2006 (NSW) depends on your relationship with the deceased, not your residence. Australian citizenship or residence is not required to claim against an NSW estate.

Do I have to travel to Sydney to make the claim?

Not always. Most stages can be managed remotely with an NSW lawyer acting as your address for service. Personal attendance is expected at mediation and is preferred at hearing, but a video link is available with the Court’s leave.

What happens if I find out about the death after 12 months?

You can apply for an extension of time under section 58(2). The Court will consider the reason for the delay, prejudice to the estate, and the strength of the claim. Late notification of death overseas can support a sufficient cause application.

Can the NSW Court make orders affecting property in another country?

Under section 64 of the Succession Act 2006 (NSW), the Court can make orders affecting overseas property in some circumstances. Practical enforcement depends on the law of the country where the property is located.

How long does a cross-border family provision claim take?

A typical NSW family provision matter takes 12 to 24 months from filing to resolution. Cross-border claims can take longer because of service, evidence gathering, and translation requirements.

Will my home country tax the NSW distribution?

Possibly. Inheritance, capital gains, and income tax rules differ by jurisdiction. Obtain advice from a tax adviser in your home country before settlement to understand the after-tax position of any provision ordered.