National Crime Your rights as a beneficiary in NSW
Right to Information
Beneficiaries are entitled to be told of their interest under the will. The executor must communicate with beneficiaries and keep them reasonably informed about the progress of the administration. While beneficiaries do not have a right to see the will before probate is granted, once probate is obtained, the will becomes a public document and beneficiaries are entitled to a copy.
Right to Accounts
Beneficiaries have a right to inspect estate accounts and to require the executor to account for their dealings with estate assets. If an executor refuses to provide accounts, a beneficiary may apply to the Supreme Court for an order compelling the executor to file an inventory and account.
Right to Proper Administration
Beneficiaries are entitled to have the estate administered in accordance with the law and the terms of the will. This includes the executor's duties to act without delay, to avoid conflicts of interest, and to distribute the estate to the correct beneficiaries in the correct proportions.
Right to Seek Removal of an Executor
If an executor is failing to administer the estate properly — through delay, self-dealing, conflict of interest, or incapacity — a beneficiary may apply to the Supreme Court for orders removing or passing over the executor and appointing an administrator in their place.
Family provision rights under Chapter 3
If you are an eligible person under the Succession Act 2006 (NSW) and you have not received adequate provision from the deceased's estate — whether under the will or on intestacy — you may apply to the Supreme Court for a family provision order. Eligible persons include:
- The deceased's spouse or de facto partner at the date of death
- A child of the deceased (including adult children)
- A former spouse of the deceased
- A person who was, at any time, wholly or partly dependent on the deceased and was a member of the deceased's household
- A grandchild who was dependent on the deceased at any time
- A person with whom the deceased was living in a close personal relationship at the date of death
A family provision application must generally be made within 12 months of the date of death. The Court may extend time in limited circumstances, but you should not assume an extension will be granted. Early legal advice is essential.
The two-stage test for family provision claims
The High Court in Singer v Berghouse (1994) 181 CLR 201 established a two-stage test that governs all family provision claims in NSW. This test is now codified in section 59 of the Succession Act 2006:
- Stage 1 — Jurisdictional question: The Court must first determine whether the applicant has been left without adequate provision for their proper maintenance, education, or advancement in life. This is assessed at the time of the hearing (not at the date of death). If the applicant has been left adequate provision, the application fails at stage 1 and the Court does not proceed to stage 2.
- Stage 2 — Discretionary question: If the Court is satisfied that adequate provision has not been made, the Court must then determine what provision should be made for the applicant. This involves assessing all of the circumstances — the applicant's needs, the size of the estate, the claims of other beneficiaries, the relationship between the applicant and the deceased, and any contributions the applicant made to the deceased's welfare or estate.
Importantly, the Court does not simply ask "what would be fair?" The test is whether the provision made by the deceased is "adequate" for the applicant's "proper" maintenance. These are objective standards, not subjective ones. An adult child who is financially independent and had a distant relationship with the deceased may struggle to establish inadequacy, while a dependent spouse or a child with a disability who contributed to the deceased's care will generally have a stronger claim.
Factors the Court considers
Section 60 of the Succession Act 2006 sets out the matters the Court may consider, including:
- The nature and duration of the relationship between the applicant and the deceased
- The applicant's financial circumstances — including earning capacity, financial needs, and obligations
- The size and nature of the estate, and any liabilities or charges against it
- The financial circumstances of any other beneficiaries and any other persons with a claim on the estate
- Any contribution by the applicant to the deceased's property or welfare
- Any provision made for the applicant by the deceased during their lifetime
- The character and conduct of the applicant before and after the death
- Any evidence of the deceased's testamentary intentions, including statements made by the deceased
- The applicant's age, health, and any physical or intellectual disability
The weight given to each factor varies from case to case. There is no formula — the Court exercises a broad discretion, guided by community standards and the facts of the individual case. This is why early legal advice, tailored to your specific circumstances, is so important.
Notional estate — property that can be clawed back
Under Part 3.3 of the Succession Act 2006, the Court has power to designate property as "notional estate" — meaning property that the deceased disposed of before death can be treated as part of the estate for the purpose of satisfying a family provision order. This power is designed to prevent the deceased from defeating a family provision claim by transferring assets away before death. The notional estate provisions are complex, and the Court can only designate property as notional estate in certain prescribed circumstances — for example, where the deceased transferred property within three years before death with the intention of defeating a claim. If you are concerned that assets have been transferred away to reduce the estate available for your claim, legal advice is essential.
Enforcing your rights
If an executor is not fulfilling their duties, several remedies are available to beneficiaries in the NSW Supreme Court:
- Order for inventory and account: Compelling the executor to provide a detailed account of estate assets, liabilities, and transactions.
- Order compelling administration: Requiring the executor to proceed with the administration if they have unreasonably delayed.
- Removal or passing over of executor: Removing the executor and appointing a substitute where the executor is unfit, has misconducted themselves, or is impeded by conflict of interest.
- Administration pendente lite: Appointing an interim administrator to preserve the estate while disputes are resolved.
- Orders for due administration: Specific directions about how the estate should be administered, including orders for the sale of assets or the distribution of funds.
The legal framework for beneficiary rights in NSW
Beneficiary rights in NSW are governed by a combination of statute and common law. The key legislative instruments include:
Succession Act 2006 (NSW)
The Succession Act 2006 is the primary statute governing wills, probate, and estate administration in New South Wales. Key provisions relevant to beneficiary rights include:
- Chapter 3 — Family Provision: Sections 55–100 set out the family provision regime. Section 57 defines eligible persons. Section 59 sets out the matters the court may consider in determining whether adequate provision has been made. Section 58(2) imposes the 12-month time limit from the date of death.
- Part 2, Division 2 — Executors and Administrators: Section 44 requires the court to be satisfied of due execution before granting probate. Section 63 gives the court power to remove an executor who is unsuitable or unable to act.
- Section 66 — Inventory and Accounts: Beneficiaries may apply to the court for an order compelling an executor to file an inventory of assets and an account of their administration.
Probate and Administration Act 1898 (NSW)
This Act governs the procedural aspects of obtaining grants of probate and letters of administration. Part 2 deals with the jurisdiction of the Supreme Court in probate matters. Part 3 sets out the process for grants and the priority of persons entitled to administration. Section 61 gives the court power to pass over an executor who is not fit and proper.
Trustee Act 1925 (NSW)
Because an executor holds estate assets on trust for the beneficiaries, the Trustee Act 1925 imposes additional obligations. Section 60 allows an executor to advertise for claims and obtain protection against late claims by unknown creditors or beneficiaries. Section 63 allows an executor to apply for judicial advice — directions from the court on how to administer the estate. Section 90 gives the court power to relieve a trustee (including an executor) from personal liability for breach of trust in certain circumstances where the trustee acted honestly and reasonably.
Supreme Court Rules 1970 — Part 78
Part 78 governs the procedure for probate and administration proceedings in the Supreme Court, including the lodging of caveats, applications for grants, and the conduct of probate litigation. Beneficiaries who need to protect their position before probate is granted should be familiar with the caveat procedure under Part 78.
Key cases on beneficiary rights
- Re Estate of Henry [2007] NSWSC 42: Considered the beneficiary's right to information and the executor's obligation to account. Confirmed that residuary beneficiaries have stronger rights to information than specific beneficiaries.
- Singer v Berghouse (1994) 181 CLR 201: The leading High Court authority on family provision claims. Established the two-stage test for determining whether adequate provision has been made.
- Bates v Cooke [2015] NSWCA 278: Confirmed that beneficiaries have standing to apply for the removal of an executor where the executor's conduct threatens the proper administration of the estate.
- Miller v Cameron (1936) 54 CLR 572: The High Court confirmed that the test for removing an executor is the welfare of the beneficiaries — not proof of misconduct.
Common mistakes by beneficiaries
Beneficiary disputes are often made more difficult by mistakes on both sides. Understanding the most common errors helps you avoid them and protect your position.
Confronting the executor without legal advice
The single most common mistake. A beneficiary calls or visits the executor and makes heated accusations about delay, dishonesty, or unfairness. The result is predictable: the executor becomes defensive, communication breaks down, and the relationship deteriorates — making resolution harder. If you have concerns, obtain legal advice before confronting the executor. A solicitor's letter is a far more effective communication tool than an emotional phone call.
Assuming delay equals misconduct
Estates take time to administer. Debts must be identified and paid, assets may need to be valued and sold, tax returns must be lodged, and the executor must wait for the expiration of the family provision claim period (12 months from death). Delay is frustrating but it does not necessarily mean the executor is doing anything wrong. Before jumping to conclusions, ask for an update and a timeline for distribution.
Demanding immediate payment
Beneficiaries often expect their inheritance within weeks of the death. This is rarely realistic. The executor cannot safely distribute the estate until all debts, taxes, and administration expenses have been paid, and the family provision claim period has expired. Demanding immediate payment when distribution is not yet possible damages your relationship with the executor and may cause them to become less communicative — not more.
Waiting too long to act
While some beneficiaries are too aggressive, others wait too long. If you have concerns about the administration of an estate, do not wait in the hope that things will improve. Once the executor has distributed assets to beneficiaries or third parties, recovering them is significantly harder — even if the distribution was improper. The family provision deadline of 12 months from death is strict. If you are considering a claim, seek advice well before the deadline.
Taking estate assets without authority
A beneficiary who is frustrated by the executor's delay or conduct sometimes decides to take matters into their own hands — removing items from the deceased's home, accessing bank accounts, or taking possession of estate property. This is unlawful and can seriously damage your position in any subsequent legal proceedings. You cannot take estate assets into your own hands, even if you believe you are entitled to them.
Ignoring the family provision time limit
The 12-month deadline for family provision claims under section 58(2) of the Succession Act 2006 is not a suggestion — it is a statutory limitation period. While the court has discretion to extend time, extensions are not granted lightly. The longer the delay, the harder it is to obtain an extension — particularly if the estate has already been distributed. If you think you may have a claim, do not wait until month 11 to seek advice. By then, your options may be limited.
Act before the estate is distributed
Once an executor has distributed the estate, recovering assets or enforcing your rights becomes materially more difficult. If you have concerns about the administration of an estate, seek legal advice promptly. Request advice →
What to do now — practical next steps
If you are a beneficiary with concerns about an estate, the following steps will help you protect your position:
Document Your Interest
Confirm that you are a beneficiary. If you have a copy of the will, review it. If you do not, request a copy from the executor once probate has been granted. If probate has not been granted, you can check with the Supreme Court Probate Registry whether an application has been filed. Gather any correspondence you have with the executor and any information you have about the estate's assets and administration.
Make a Written Request
Send a clear, polite, written request to the executor. Specify what information you are seeking — for example, a summary of estate assets and liabilities, an update on the progress of administration, and accounts of estate transactions. If you are a residuary beneficiary, you have a right to these accounts. Keep a copy of your request and any response you receive.
Obtain Legal Advice
If the executor does not respond within a reasonable time — or if the response is inadequate or raises further concerns — obtain legal advice. A probate litigation lawyer can assess your position, advise on the strength of any potential claim, and explain the remedies available. If you are considering a family provision claim, seek advice well before the 12-month deadline from the date of death.
Escalate Proportionately
Not every dispute needs to go to court. A solicitor's letter to the executor often prompts a response from an executor who has been ignoring informal communication. If this does not resolve the matter, consider whether a court application for accounts, for orders compelling administration, or for removal of the executor is appropriate. Escalate proportionately — start with the least confrontational step and move up as needed.
Act Before Distribution
If the executor signals an intention to distribute the estate — and you have unresolved concerns — act immediately. Once assets are distributed to third parties, recovering them is significantly harder. A caveat or an urgent court application can preserve the position while your concerns are addressed. Do not assume you can sort things out after distribution has occurred.
Are your beneficiary rights being ignored?
If you are a beneficiary and the executor is not communicating, delaying probate, or appears to be acting improperly, we can advise on your rights and the remedies available under NSW law.
Related services
Beneficiary rights rarely exist in isolation. Depending on your circumstances, these related areas may also be relevant:
NSW Executor Duties
Understanding what the executor is required to do — and what they are not permitted to do — is essential to knowing whether your rights are being respected.
Explore executor duties →Challenging a Will in NSW
If you believe the will itself is invalid — due to lack of capacity, undue influence, or fraud — a will challenge may be the appropriate remedy rather than a family provision claim.
Explore will challenges →NSW Probate Timeline
Understanding the key deadlines — the 6-month probate expectation, the 12-month family provision limit, and caveat timing — is critical to protecting your rights.
Explore probate timeline →NSW Caveats & Objections
If probate has not been granted and you have concerns about the will or the executor, a caveat can preserve your position while you investigate.
Explore caveats →Executor Misconduct
Where the executor is actively breaching their duties — through self-dealing, misappropriation, or serious conflict of interest — removal and compensation are available.
Explore executor misconduct →QLD Beneficiary Rights
If the estate is in Queensland, different rules apply. The Succession Act 1981 (QLD) governs family provision claims, with a 9-month notice period and 9-month application deadline.
QLD beneficiary rights →Frequently asked questions — NSW beneficiary rights
Strictly speaking, a beneficiary does not have a legal right to see the original will before probate is granted. However, once probate is granted, the will becomes a public document and can be inspected at the Supreme Court Probate Registry. In practice, many executors will provide a copy to beneficiaries before probate as a matter of good administration. If an executor refuses to disclose the will's contents and you have reason to believe you are a beneficiary, you may seek legal advice about the options available to compel disclosure or to lodge a caveat to protect your position.
An executor is entitled to a reasonable period to administer the estate — typically 6 to 12 months from the date of death, depending on the complexity. However, if the executor has unreasonably delayed distribution beyond what is reasonable, you may apply to the Supreme Court for orders compelling the executor to proceed with the administration or to account for the delay. If the executor's conduct amounts to misconduct or neglect, you may also seek their removal. Before taking any formal steps, it is usually advisable to communicate your concerns in writing and seek a timeline for distribution. If this does not resolve the matter, legal advice should be obtained.
Yes, in some circumstances. An executor has a duty to act in the best interests of the estate and its beneficiaries. If an executor proposes to sell estate assets at an undervalue, to sell assets that should be retained, or to make decisions that adversely affect your interests as a beneficiary, you may apply to the Supreme Court for directions or to restrain the executor from taking the proposed action. The Court will consider whether the executor's proposed course is consistent with their duties and the proper administration of the estate. You should seek legal advice promptly if you have concerns about an executor's proposed actions.
A residuary beneficiary is entitled to a share of what remains in the estate after specific gifts, debts, tax, and administration expenses have been paid. Residuary beneficiaries have the strongest rights to information — they are entitled to see the will, to be told about the assets and liabilities, and to receive accounts of the estate administration. A specific beneficiary is left a particular item (such as a piece of jewellery) or a fixed sum of money. Specific beneficiaries have more limited rights — they are entitled to know they are a beneficiary and to receive their gift, but generally not to full estate accounts. If you are unsure what type of beneficiary you are, legal advice can clarify your position.
It depends on the type of claim. If the executor has distributed the estate in accordance with the will, a family provision claim can still be brought within 12 months of death — but if the estate has been distributed to beneficiaries who have spent or dissipated the assets, recovering them may be difficult. The executor who distributed prematurely may be personally liable. If the distribution was improper (e.g. to the wrong beneficiaries), the executor may be liable to compensate the estate and the court may order that distributed assets be returned. However, recovery is always more difficult after distribution than before. If a caveat was lodged before probate, distribution should not have occurred without notice to the caveator. This is why acting early is so important.
Yes. A family provision claim is not limited to cases where the eligible person was left nothing. You can bring a claim if what you were left is inadequate for your proper maintenance, education, or advancement in life. The court will consider factors including your financial circumstances, your relationship with the deceased, the size of the estate, the competing claims of other beneficiaries, and any contributions you made to the deceased's welfare or estate. The fact that you received something under the will does not prevent a claim — the question is whether that provision was adequate. Many successful family provision claims involve beneficiaries who were left something, but not enough given their needs and circumstances.
The cost depends on the nature of the dispute and whether it can be resolved without a hearing. A solicitor's letter seeking information or accounts may cost a few hundred dollars. A contested court application for accounts or removal of an executor can cost tens of thousands of dollars or more. Family provision claims vary significantly — an early settlement through negotiation or mediation may cost several thousand to low tens of thousands, while a fully contested hearing can cost over a hundred thousand dollars. Costs in family provision claims are often ordered to be paid from the estate, but this is not guaranteed. Legal advice on the costs risks specific to your case is essential before commencing proceedings.
"Notional estate" is a concept under Part 3.3 of the Succession Act 2006 (NSW). It allows the Supreme Court to treat property that the deceased transferred away before death as if it were still part of the estate — making it available to satisfy a family provision order. This is designed to prevent the deceased, or someone acting for them, from defeating a family provision claim by transferring assets to someone else before death. The Court can only designate property as notional estate in specific circumstances — for example, where the property was transferred within three years before death as a result of a "relevant property transaction" intended to defeat a claim. It can also apply to property held in joint tenancy that passes by survivorship. Notional estate applications are technically complex and require careful legal advice. If you suspect assets have been transferred away to reduce the estate, seek advice promptly — before the 12-month deadline expires.
It is common for an executor to also be a beneficiary — many wills appoint a spouse or child as both executor and beneficiary. This is not, by itself, improper. However, an executor who is also a beneficiary faces a heightened risk of conflict of interest and must take particular care to discharge their duties impartially. If the executor-beneficiary is favouring their own interests — for example, allocating disputed assets to themselves, delaying distribution to other beneficiaries while taking their own share, or concealing information from other beneficiaries — this may justify an application to the Supreme Court for the executor's removal or passing over. The test is the welfare of the beneficiaries, and the Court will not permit an executor-beneficiary to use their position to advantage themselves at the expense of others. If you are concerned about an executor-beneficiary's conduct, document the specific actions that concern you and obtain legal advice before taking formal steps.