A Guide to Family Provision Claims
You’ve taken the important step of writing a will. You’ve decided who gets what, you’ve chosen your executor, and you believe your wishes are clear. But what happens if a family member disagrees with what you’ve left them, or if you’ve been left out of a loved one’s will entirely?
This is where family provision claims come in. And in NSW, they’re more common than most people realise.
This guide explains what a family provision claim is, who can make one, how the process works, and what you can do, whether you’re concerned your will might be challenged, or you believe you’ve been unfairly left out of an estate.
What Is a Family Provision Claim?
A family provision claim is a legal application made to the Supreme Court of NSW by an eligible person who believes they were left without adequate provision from a deceased person’s estate.
Under Chapter 3 of the Succession Act 2006 (NSW), the Court has the power to alter the distribution of an estate — even overriding the terms of a valid will — if it is satisfied that the person was not adequately provided for in light of their needs and circumstances.
This is different from challenging a will on the basis that it is invalid or was made under duress. A family provision claim doesn’t dispute the legitimacy of the will — it disputes whether it is fair.
💡 Tip: The existence of a valid will does not prevent a family provision claim. Anyone writing a will should be aware that certain people have the right to apply to the Court for further provision.
Who Can Make a Family Provision Claim in NSW?
Not everyone can bring a family provision claim. Under section 57 of the Succession Act 2006 (NSW), only an ‘eligible person’ may apply. Eligibility is a ‘gateway’ requirement — if you do not meet it, your claim cannot proceed.
Eligible persons include:
- A spouse of the deceased at the time of their death (including a legally married spouse)
- A de facto partner of the deceased at the time of their death (including same-sex couples)
- A child of the deceased, including adopted children and in some cases stepchildren
- A former spouse (who has not remarried) in certain circumstances
- A grandchild or member of the deceased’s household who was wholly or partly dependent on the deceased at any time
- A person living in a close personal relationship with the deceased at the time of death (a relationship other than marriage or de facto, where one person provides domestic support and personal care to the other)
Being an eligible person does not guarantee a successful claim — it simply means you are permitted to apply. The Court will then consider whether adequate provision was actually made.
💡 Tip: Whether you’re writing a will or considering a claim, understanding eligibility under the Succession Act is essential. A solicitor can assess your specific situation quickly.
What Does the Court Consider?
Once eligibility is established, the Court must decide whether the deceased person made adequate provision for the applicant’s ‘proper maintenance, education or advancement in life’ under section 59 of the Succession Act 2006 (NSW).
If not, the Court has broad discretion to make ‘such order for provision out of the estate as the Court thinks ought to be made.’
In making this assessment, the Court may consider any or all of the 16 factors listed in section 60(2) of the Succession Act 2006 (NSW), including:
- The nature and duration of the relationship between the applicant and the deceased
- The financial resources, needs and earning capacity of the applicant
- The size and nature of the estate
- Any other competing claims on the estate (e.g. other beneficiaries)
- Contributions the applicant made to the property or welfare of the deceased
- Any conduct of the applicant that the deceased considered grounds for reducing or excluding provision
The Court takes a holistic view. A history of estrangement, for example, does not automatically bar a claim — but it may influence the outcome.
The Critical 12-Month Deadline
One of the most important things to understand about family provision claims in NSW is the strict time limit.
Under section 58 of the Succession Act 2006 (NSW), a family provision claim must be commenced within 12 months from the date of the deceased person’s death. This deadline applies regardless of when you become aware of the will or the estate’s contents.
While the Court has discretion to extend this time limit in exceptional circumstances, extensions are not guaranteed and require strong justification. Delays can seriously damage — or entirely forfeit — your right to claim.
💡 Tip: If you believe you may have grounds for a claim, do not wait. Seek legal advice as soon as possible after a loved one passes away.
How Does the Process Work?
1. Filing the Application
A family provision claim is commenced by filing a Summons and supporting affidavit evidence in the Supreme Court of NSW. The executor or administrator of the estate is named as the respondent and is responsible for defending the claim.
2. Mediation
All family provision claims in the Supreme Court of NSW are referred to alternative dispute resolution. This may take the form of a settlement conference, court-annexed mediation, or private mediation. The majority of claims are resolved at this stage without the need for a hearing before a judge.
3. Hearing
If a claim does not settle, it proceeds to a hearing before a judge of the Supreme Court of NSW. The judge will consider all evidence and make a determination.
What About Legal Costs?
Costs are an important practical consideration in family provision claims.
In many cases, the legal costs of both the applicant and the estate are paid from the estate itself — meaning the claim is effectively funded by the estate’s assets. However, this is not automatic and depends on the circumstances of the case.
If a claim is unsuccessful, the Court may order the applicant to pay not only their own legal costs but also the estate’s costs. These orders can be significant.
Given the financial risk involved, it is critical to obtain specialist legal advice before proceeding. A lawyer experienced in estate litigation can give you a realistic assessment of the likely outcome and risks before you commit.
What If You Want to Protect Your Will From a Claim?
If you’re concerned that your will might be challenged after your death, there are steps you can take to reduce that risk, though no will is entirely immune from a family provision claim.
Practical steps include:
- Clearly documenting your reasons for making (or not making) certain provisions in your will
- Making inter vivos gifts during your lifetime (though note the Court can also consider ‘notional estate’ orders under the Succession Act)
- Entering into a Deed of Release with a former spouse or de facto partner, once approved by the Supreme Court of NSW, which can prevent that person from making a claim against your estate
- Reviewing and updating your will regularly — especially after major life events such as marriage, divorce, or the birth of children or grandchildren
A solicitor specialising in wills and estates can help you structure your estate in a way that reflects your wishes as clearly as possible and minimises the risk of future disputes.
Speak to a Sheridan Legal Estates Lawyer
Whether you’re concerned about contesting a will, protecting your own estate, or navigating the grief of losing a loved one while dealing with legal complexity — Sheridan Legal is here to help.
Our experienced wills and estates team provides:
- Clear, plain-English advice on your rights and options under the Succession Act 2006 (NSW)
- Honest assessment of the merits and risks of a family provision claim before you commit
- Guidance for executors, beneficiaries, and estate administrators on their rights and obligations
- Support in drafting wills that clearly reflect your wishes and reduce the risk of dispute
📞 Call Sheridan Legal on (02) 6562 3300 or book an appointment to speak with one of our lawyers today.