Who can make a family provision claim in NSW?
Section 57 of the Succession Act 2006 (NSW) identifies the people who may apply for a family provision order. They include:
- a person who was the deceased person’s spouse at the date of death;
- a person who was living in a de facto relationship with the deceased at the date of death;
- a child of the deceased person;
- a former spouse of the deceased person;
- a person who was wholly or partly dependent on the deceased and who is a grandchild of the deceased or was a member of the deceased’s household; and
- a person who was living in a close personal relationship with the deceased at the date of death.
Being an eligible person does not mean that an application will succeed. The Court must also consider the statutory requirements, the circumstances of the particular estate, the applicants, the history of the relationship between the deceased and each applicant, to name some factors.
Do some eligible people face an additional threshold?
Yes. Under section 59 of the Succession Act 2006 (NSW), a former spouse, a qualifying dependent grandchild or household member, or a person who was in a close personal relationship with the deceased must establish that there are factors which warrant making the application.
The Court must also be satisfied that adequate provision has not been made for the applicant’s proper maintenance, education or advancement in life. These questions depend on the evidence and circumstances; eligibility by itself is not enough.
How long do you have to make a family provision claim?
An application for a family provision order generally must be filed no later than 12 months after the deceased person’s date of death. The application is taken to have been made on the day it is filed in the Court registry. Section 58 of the Succession Act 2006 (NSW) sets out the time limit and the circumstances in which an out-of-time application may be considered.
Do not wait until the deadline is approaching. An extension is not automatic, and delay can affect the estate and the available evidence. Obtain urgent legal advice if the death occurred close to or more than 12 months ago, or if estate property may be distributed.
What does the Court consider?
The Court may consider the matters listed in section 60 of the Succession Act 2006 (NSW). Depending on the matter, relevant considerations may include:
- the relationship between the applicant and the deceased;
- obligations or responsibilities the deceased owed to the applicant and others;
- the nature and value of the estate;
- the applicant’s financial resources, needs, age and health;
- the circumstances and competing needs of beneficiaries and other eligible people;
- any contribution the applicant made to the deceased’s welfare or estate; and
- any provision made for the applicant before or after the deceased’s death.
The list is not a formula and no single factor determines the result. The weight given to each matter depends on the evidence, and is assessed holistically.
What evidence and documents may be needed?
The documents required will depend on the claim, but it can be useful to gather:
- the will and any codicils;
- the death certificate, if available;
- any grant of probate or letters of administration;
- available information about estate assets, liabilities and beneficiaries;
- evidence of the applicant’s relationship with, or dependence on, the deceased;
- details of the applicant’s income, expenses, assets, liabilities and financial needs;
- relevant medical, care or support information; and
- correspondence concerning the estate or the applicant’s circumstances.
A solicitor can identify gaps in the evidence and explain what information must be provided to the Court and the other parties.
What is the usual process?
The process often includes obtaining advice, investigating the estate and the applicant’s circumstances, notifying the executor or administrator, and considering whether the dispute can be resolved before proceedings. If an application is filed, the Supreme Court manages the exchange of evidence and other steps under its current Probate and Family Provision List guidance.
The Court may refer a matter to mediation. Mediation allows the parties to discuss a negotiated outcome with an independent mediator, but it does not guarantee settlement. The Supreme Court of NSW’s mediation guidance explains the Court’s mediation process and preparation requirements.
If the matter does not settle, it may proceed to a hearing where the Court determines the application on the evidence and applicable law.
What outcomes are possible?
A matter may resolve by negotiated agreement and consent orders, or the Court may make a family provision order after a hearing. The application may also be dismissed, withdrawn or otherwise resolved without additional provision being ordered. Costs are discretionary and depend on the circumstances; it should not be assumed that the estate will pay every party’s costs.
Is a family provision claim the same as challenging a will’s validity?
No. A family provision claim generally asks whether adequate provision should be made from an estate for an eligible person. It does not necessarily dispute that the will is valid.
A will-validity dispute concerns whether a particular will should be admitted to probate. Different issues, evidence, procedures and potential outcomes apply. The Supreme Court of NSW’s contested-proceedings guidance explains these distinct pathways.
If there are concerns about capacity, execution, undue influence, the meaning of a will, or an executor’s administration, obtain advice about the correct type of claim and any applicable deadline rather than assuming the family provision rules apply.
How can a contested-estates lawyer help?
A lawyer can assess eligibility and any additional threshold, advise on the filing deadline, identify evidence, communicate with the executor or administrator, prepare or respond to proceedings, and represent a party in negotiation, mediation or Court.
The strength, cost and appropriate strategy for a claim depend on the estate, the evidence and the circumstances of all affected people. Early advice can help protect available options and support a proportionate approach.
