Family Provision Claims

When a person who has made a will in NSW passes away, certain people can contest the will by making an application to the Supreme Court (“the Court”) for a Family Provision Claim within 12 months of the will maker’s death.

A Family Provision Claim application is usually made by an individual who believes they are entitled to a larger share of the will maker’s estate, or if they haven’t been included in the will, believes that they are entitled to a share.

To make a Family Provision Claim, you must be deemed an ‘eligible person’ under the Succession Act 2006 (NSW) (“the Act”). The Act specifies an ‘eligible person’ as being:

  1. The spouse of the deceased person at the time of their death;

  2. A person living in a de facto relationship with the deceased at the time of their death;

  3. A child of the deceased person;

  4. A former spouse of the deceased person;

  5. A person who at any particular time was wholly or partly dependent on the deceased;

  6. A grandchild of the deceased who was at that particular time or at any other time, a member of the household of which the deceased person was a member; or

  7. A person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death.¹

If an eligible person has brought a Family Provision Claim, the Court may order that the person bringing the claim be awarded a larger share of the deceased’s estate or may order that the person receive a share of the estate if they are not already included in the will. 

When deciding whether to grant a Family Provision Claim application, the Court considers a range of matters such as the nature and duration of the familial relationship between the applicant and the deceased, the nature and extent of the deceased’s estate, the financial health and needs of the applicant, and the nature and extent of any obligations or responsibilities owed by the deceased to the applicant.² 

If you are interested in bringing an application for a Family Provision Claim, or would like some advice regarding Family Provision Claims, please contact our firm and our experienced Wills & Estates team will be happy to provide you with assistance.

Article by Cooper Smith

¹ Section 57 Succession Act 2006 (NSW).
² Ibid Section 60.