A family provision claim allows eligible persons to apply to the Supreme Court of NSW for a share of or to increase their share of the estate of a deceased family member or loved one.

The grounds for a family provision claim are that the applicant has not received “adequate provision for proper maintenance, education, and maintenance in life” from the deceased’s estate. An applicant may have been left out of the Will entirely or receiving less from the estate than they believe they are entitled to.

A family provision claim can be made when there is a valid Will and sometimes where there is no Will. The claim must be filed with the court within 12 months of the deceased’s passing. A grant of Probate or Letters of Administration is not a pre-requisite to making a claim.

Who can make a Family Provision Claim?

The Supreme Court of NSW will only accept family provision applications from ‘eligible persons’ [section 57 of the Succession Act 2006 (NSW)].

You may be eligible to make a family provisions claim in NSW if you are:

1. the deceased’s de facto partner of (including same-sex couples);
2. the deceased’s wife or husband;
3. a child of the deceased (including an adopted child);
4. someone who was (at least partly) dependent on the deceased;
5. the deceased’s former wife or husband;
6. a member of the deceased’s household;
7. a grandchild of the deceased;
8. someone living in a close personal relationship with the deceased when they died.

How does a Family Provision claim work?

The application, evidence and documents are filed with the Supreme Court of NSW.

The case is then listed for compulsory mediation. If it is not successfully resolved at mediation, it will be listed for a hearing.

The Court will consider the case against the criteria set out in section 60 of the Succession Act before making an order.

What things will the court consider when deciding my case?

1. Any responsibilities or obligations owed by the deceased person to the applicant;
2. The value and location of the deceased person’s estate;
3. The financial circumstances of the applicant, including their current and future financial needs;
4. Whether someone financially supports the applicant;
5. Whether the applicant has any physical, intellectual or mental disabilities;
6. The relationship between the applicant and the deceased;
7. Any contribution the applicant made to increase the value of the estate;
8. The applicant’s age;
9. Whether the deceased provided the applicant with maintenance, support or assistance;
10. Whether the deceased has already provided for the applicant during their lifetime or from the estate;
11. The applicant’s character;
12. Any other claims on the estate;
13. Whether anyone else is responsible to support the applicant;
14. Any applicable customary law if the deceased were Aboriginal or Torres Strait Islander;
15. Any other matter the court may consider relevant.

Here to Help

Contact us if you are or think you may be an eligible person and want to make a family provision claim, we’re here to help. We will work to ensure the best possible outcome for you.