Discovering that your inheritance is significantly less than you expected or that you have been left out of a will altogether can raise challenging questions during a time of mourning. The overwhelming stress of navigating family dynamics is further exacerbated by the legal uncertainties surrounding the situation.
The family provision claim allows you to file a claim with the court for a share (or larger share) of a deceased estate because they will inadequately provided for. This claim is filed with the Supreme Court of NSW and can assess whether you were adequately covered for education, advancement in life, and proper maintenance.
According to the Succession Act 2006 (NSW), the law governs family provision claims, striking a balance between the freedom to choose how best to distribute one’s assets and a legal and moral duty to ensure that dependents and close family members are adequately provided for. In this article, we will explain precisely how the family provision claim works so you understand your options and rights clearly and calmly.
Family Provision Claim NSW Defined
The family provision claims allow for eligible persons to file a claim with the court requesting an alteration to the deceased’s estate. Family provision claims can be filed whether the deceased died without a will (intestate) or with one.
Should the court determine the provision was inadequate, it can order that a specific asset or amount be furnished to you from the estate. While will challenges can create family conflict, it’s important to remember that family provision claims are a structured legal pathway that was designed to ensure fairness with genuine financial and personal needs in mind. It is merely correcting a perceived oversight.
NSW’s Eligible Persons Criteria
The law places limits on who can challenge or contest a will in NSW. You must have a genuine, recognised relationship (or dependency) to make a claim, and the Succession Act 2006 (NSW) defines who is an eligible person, including:
- Spouse
- De facto partner
- Children (biological, adopted, step, and foster)
- Former spouse
- Grandchildren
- Household members wholly or partially dependent on the deceased
- Close personal relationships, such as a live-in friend/family member who provides personal care and domestic support without remuneration.
If any of these describe you, you are legally an eligible person and can explore whether a claim is the right choice for you. If you aren’t sure whether it applies, as there’s no will, a free consultation can help clarify your options.
Court Considerations When Assessing Claims
Being an eligible person doesn’t guarantee a successful claim; the court assesses each case individually and will assess a range of factors before issuing a decision.
- Financial situation. The court will review your current income and expenses, debts, assets, and future needs, including educational or health requirements.
- The estate. The larger the estate, the easier a court can accommodate claimants without others being left empty-handed.
- The relationship. The court will consider the type of relationship you had with the deceased.
- The needs. In addition to your needs, the court will also consider the needs of the other beneficiaries involved. Your claim must be balanced with the needs and entitlements of other people listed in the will.
- The evidence. Is there written evidence in the will or letters that explains why the deceased made the will decisions they did?
- Contributions. The court will weigh any non-financial or financial support you provided the deceased, whether you offered care or helped build assets.
Do Time Limits Apply?
Yes. Time is critical when handling estate matters, and in New South Wales, there is a 12-month time limit from the date of the deceased’s death.
| The Will & Estate Timeline | |
| Milestone | Action |
| Date of death | The time limit countdown starts on the date of death. |
| One to six months | Now is the time to seek legal advice and start gathering your records and evidence. |
| Six to 11 months | This is generally the mediation and negotiation stage. |
| 12-month deadline | It’s too late to file your claim with NSW’s Supreme Court. |
While the courts do grant extensions for late claims in exceptional circumstances, it’s best to do so within the time limit to avoid rejection. The earlier you seek independent legal advice, the better your position.
Family Provision Claim Steps
If you believe you have been unfairly treated, there is a structured legal process to contest a will and assist you in resolving the dispute.
- Start by taking specialist legal advice to assess whether you are an eligible person, and, if you are an eligible person, determine whether your claim has merit.
- Gather evidence to support your claim, collecting documents to show your financial situation, relationship history with the deceased, and medical or educational requirements.
- New South Wales requires mediation, so a formal, private meeting is scheduled for everyone to sit down and work together to strike an agreement.
- If mediation is unsuccessful, your legal team will file a claim in the NSW Supreme Court for the judge to make the final decision.
Frequently Asked Questions
I’m not a blood relative. Can I still contest a will?
Yes. Former spouses, de facto partners, adopted children, step children, and household dependents could all qualify as eligible persons under the Succession Act 2006 (NSW), even if there is no biological relationship.
What if I miss the 12-month time limit?
You lose the automatic right to file a family provision claim if you miss the deadline.
In this case, you will need to apply for special permission from the court to file your family provision claim late. To secure this special permission, you will need to provide the court with a compelling reason for the delay.
Do most family provision claims settle out of court?
In the vast majority of family provision claims, yes, they are resolved at the mandatory mediation stage without the need for a full court hearing. It’s quicker, less stressful, and protects the estate.
How AJB Stevens Can Help
AJB Stevens recognises the deep emotions that come with contesting a will, and we approach every case with absolute sensitivity. Our goal is to provide clear guidance with compassion to ensure you secure a fair outcome. We will walk beside you through every step of the family provision claim process.
If you believe you were unfairly treated, learn more about your options with a free consultation.
