When a person dies, their Will sets out how they want their estate distributed. However, NSW law allows certain people to challenge that distribution if they feel they have not been adequately provided for. This process — a family provision claim — is one of the most common forms of contested estate litigation in NSW.
The Legal Framework
Family provision claims are governed by the Succession Act 2006 (NSW). The Act allows eligible persons to apply to the Supreme Court for provision from a deceased estate — or for an increase in provision already made.
The court does not simply override the Will. It makes an assessment of whether the deceased had a moral duty to provide for the claimant, and if so, what provision is appropriate in all the circumstances.
Who Is Eligible to Make a Claim?
Not everyone can make a family provision claim. Only "eligible persons" as defined by the Act can apply:
- A spouse of the deceased (including de facto partner)
- A child of the deceased (including adult children and children from previous relationships)
- A former spouse
- A person who was wholly or partly dependent on the deceased, and who is either a grandchild or was a member of the deceased's household
- A person who was in a close personal relationship with the deceased at the time of death
The 12-Month Time Limit
A family provision application must be filed in the Supreme Court within 12 months of the date of death. This deadline is strict. While extensions can be granted, they require the court's permission and are not guaranteed. If you are considering a claim, act immediately — do not wait.
What Does the Court Consider?
The court considers a wide range of factors, including:
- The nature and closeness of the relationship between the claimant and the deceased
- Any obligations the deceased had towards the claimant
- The claimant's current financial needs, resources, and earning capacity
- The size of the estate and its ability to provide for all claims
- The needs of other beneficiaries
- Any contributions the claimant made to the deceased's welfare
- Any conduct by the claimant that might reduce their entitlement
- Any provision made by the deceased during their lifetime
What Provision Might Be Ordered?
If a claim succeeds, the court orders a specific amount to be paid to the claimant from the estate. This can range from a small lump sum to a very substantial proportion of the estate, depending on the circumstances. In some cases, the court may order that specific property be transferred rather than a cash payment.
Can Claims Be Resolved Without Going to Court?
Yes — and they usually are. Most family provision claims are resolved through negotiation or mediation before a final hearing. This is generally faster, cheaper, and less distressing for all parties. We explore all settlement options before recommending court proceedings.
Defending a Family Provision Claim
If you are an executor or beneficiary facing a family provision claim, we can advise on the strength of the claim, gather evidence to defend the estate's position, and represent you in negotiations or court proceedings.
At James Papas Solicitors, we act for both claimants and estates in family provision matters. Your first consultation is free. Call (02) 9633 3122 as soon as possible after a death where a claim may arise.
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