Claiming against an Estate: Who can claim and what does an applicant need to show?

If you are a beneficiary or family member who has been left out of a will or your inheritance is less than promised or you consider you are entitled to a larger share than you have been left, there are avenues to pursue. One of these is to bring an application for family provision against the deceased person’s estate however, not everyone is automatically entitled to claim.

This article examines who is eligible to bring a claim and, if so, what that applicant needs to demonstrate in order to be successful.

Who can claim?

Before you can claim, you will need to establish that you are an eligible applicant.

The current family provision legislation, Succession Act (2006) NSW, specifies who can make an application. If you are:

  • a spouse, a person living in a de facto relationship with the deceased or a child, you are automatically entitled to bring a claim; or
  • a former spouse, a person who at one time was a member of the deceased’s household, or was living in a close personal relationship with the deceased at the time of the deceased’s death, it is possible to bring a claim but additional factors need to be demonstrated.

The existence of a particular relationship to a deceased does not create a moral duty to provide. If you are eligible to bring a claim, it does not necessarily follow that there will be an automatic entitlement to provision. It will need to be shown that the deceased failed to make proper provision for you either during the deceased’s lifetime or through their will.

What does the court consider when asking if there has been proper provision for an applicant?

To determine whether or not the deceased did make proper provision involves examining two questions:

  1. has the applicant been left by the deceased person without adequate provision for his or her proper maintenance, education and advancement in life; and, if so
  2. what provision ought to have been made?

Some of the matters that a court will look at to determine whether or not adequate provision has been made are the applicant’s financial position, the size and nature of the deceased’s estate and it will then balance these considerations with the interests of other claimants and demands on the estate.

An applicant must be able to demonstrate that they have a genuine need for maintenance and support and that their own financial resources are not adequate to meet their needs.

Other relevant considerations that will be taken into account will be any provision that a deceased made during their own lifetime, as well as the character and conduct of the applicant before and after the deceased’s death.

It is important to bear in mind the approach a court will take.

Each family provision claim is different and the outcome will depend on the circumstances and merits of a particular case.

Furthermore, frequently emphasised in judicial decisions is that the court does not have the power to effect what may be considered to be a fair distribution of the deceased’s estate among competing beneficiaries. The purpose of the family provision regime is not to create equality or fairness between a deceased’s family members. Nor is it an issue in a family provision claim of righting the wrongs that may have existed in a relationship between the deceased and the applicant.

A successful order for family provision in favour of an applicant will be made at the court’s discretion. The court will only intervene to the extent necessary when an eligible applicant is in need of proper provision and the deceased failed to make proper provision for the applicant.

 The contents of this article are intended to provide a general guide only. If you are considering bringing a claim against a deceased estate, you should seek advice that looks at your particular circumstances.

If you wish to discuss any claim that you may want to bring, contact our team today.


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