Family Provision Claims

If a loved one’s Will does not make adequate provision for you, you may be able to make a Family Provision Claim under the Succession Act 2006 (NSW) for a share (or in some circumstances, a greater share) of their estate.

What is a Family Provision Claim?

A Family Provision Claim is an application to the Supreme Court of NSW seeking an order that a person be provided for, or made further provision, out of a deceased person’s estate. A family provision claim is not a challenge as to the validity of the Will. Instead, a family provision claim asks the Court to adjust how the estate is distributed because the estate has not made adequate provision for the proper maintenance, education or advancement in life of an eligible person. These claims are governed by Chapter 3 of the Succession Act 2006 (NSW). A family provision claim can also be made against an intestate estate (where someone has died without a Will).

Send an online enquiry

"*" indicates required fields

Who is an eligible person?

Only an “eligible person” as defined in section 57 of the Act can bring a Family Provision Claim. Eligible persons are as follows:

(a) a person who was the spouse of the deceased at the time of death;

(b) a person who was in a de facto relationship with the deceased at the time of death;

(c) a child of the deceased;

(d) a former spouse of the deceased;

(e) a person who was, at any particular time, wholly or partly dependent on the deceased and who was a grandchild of the deceased, or was at that time or any other time a member of the household of which the deceased was a member; and

(f) a person with whom the deceased was living in a close personal relationship at the time of death.

Falling into one of these categories does not guarantee a successful claim. The Court must still be satisfied, having regard to all the circumstances, that adequate provision has not been made.

What does the Court consider in deciding a claim?

Section 60 of the Act sets out a broad range of matters the Court may consider, including:

(a) the nature and duration of the relationship between you and the deceased;

(b) any obligations or responsibilities owed by the deceased to you and to other beneficiaries;

(c) the size and nature of the estate, and any charges or encumbrances on it;

(d) your financial resources and financial needs, both present and future;

(e) any physical, intellectual or mental disability of yours or of any other beneficiary;

(f) your age at the time the application is being considered;

(g) any contribution made by you to the deceased’s property or welfare, for which you were not adequately compensated; and

(h) your character and conduct, and the character and conduct of any other person.

Family Provision Claim or challenging the validity of a Will?

These are often confused, but they are different processes. A Family Provision Claim accepts that the Will is valid but seeks a greater (or different) share of the estate. Challenging the validity of a Will is a separate process, used where there are concerns about the deceased’s testamentary capacity, undue influence, fraud, or whether the Will was properly executed.

Depending on your circumstances, one or both processes may be relevant, and we can advise you on the appropriate course of action.

Is there a time limit?

Yes. Under section 58 of the Act, a Family Provision Claim must generally be made within 12 months of the date of death. The Court has discretion to extend this period in some circumstances, but an extension is not guaranteed, and delay can prejudice your position, particularly if the estate has already been distributed.

You’ll find the team at Conditsis Lawyers is here to guide you through every step of a Family Provision Claim, whether you are considering making one or you are an executor or beneficiary responding to one.

Book a free, private and confidential consultation today.

CALL 4324 5688