When a person dies and leaves a Will, most people assume that the Will is final and must be followed exactly. In NSW, that is not always the case. The law allows certain eligible people who have not been adequately provided for in a Will — or who have been left out entirely — to make a claim against the estate. This is called a Family Provision Claim.
What Is a Family Provision Claim?
A Family Provision Claim (sometimes called contesting a Will) is a legal application made to the NSW Supreme Court under the Succession Act 2006. It asks the court to make an order that provision be made for you from the deceased's estate — or that existing provision be increased.
The court does not override the Will entirely. Instead, it looks at whether the deceased had a moral obligation to provide for you, whether they did so adequately, and if not, what provision would be appropriate given all the circumstances.
Who Can Make a Claim?
Not everyone can make a Family Provision Claim. Only "eligible persons" as defined by the Succession Act can apply. In NSW, eligible persons include:
- A spouse of the deceased (including a de facto partner)
- A child of the deceased (including adopted children)
- A former spouse of the deceased
- A person who was, at any time, wholly or partly dependent on the deceased and is a grandchild or was a member of the deceased's household
- A person with whom the deceased was living in a close personal relationship at the time of death
Siblings, cousins, friends, and other relatives are not automatically eligible. However, if they were dependent on the deceased, they may qualify.
The Time Limit — Act Quickly
This is critical: in NSW, a Family Provision Claim must be filed in the Supreme Court within 12 months of the date of death. This deadline can be extended in limited circumstances, but extensions are not guaranteed and require the court's permission. If you are considering making a claim, seek legal advice immediately — do not wait.
What Does the Court Consider?
The court weighs many factors when deciding whether to make a family provision order and how much provision to award:
- The nature of your relationship with the deceased
- Any obligations the deceased had towards you
- Your current financial needs, resources, and earning capacity
- Your health and age
- Any contributions you made to the deceased's welfare or estate
- Whether the deceased made provisions for you during their lifetime
- The size and nature of the estate
- The needs of other beneficiaries
- Any conduct that might disentitle you to provision (for example, estrangement due to your own behaviour)
Can the Executor Challenge My Claim?
Yes. The executor of the estate can defend the claim on behalf of the estate and other beneficiaries. Contested family provision matters can become complex and expensive if they proceed to a full hearing. Most matters are resolved by agreement before a hearing — through negotiation or mediation.
What If the Will Is Fraudulent or Invalid?
Contesting a Will on grounds of invalidity — for example, alleging that the deceased lacked testamentary capacity when they made the Will, or that they were unduly influenced — is a separate and more complex legal challenge. This requires different evidence and a different type of court application. If you suspect fraud or undue influence, seek legal advice immediately.
Can I Prevent My Will Being Contested?
Proper estate planning — including a carefully drafted Will that records your reasons for your decisions — can reduce the risk of a successful Family Provision Claim. A testamentary trust may also provide additional protection. We can advise on estate planning strategies to minimise the risk of your estate being contested. Call us on (02) 9633 3122.
Need legal advice? James Papas Solicitors offers free first consultations for all Wills & Estate Planning matters. Our offices are in Parramatta and we serve all of Western Sydney. Learn more about our Wills & Estate Planning services → or contact us today.