How do I Contest a Family Provision Claim?

An eligible person can make a claim for a share of a deceased estate through a family provision claim. A family provision claim is made under Section 59 of the Succession Act 2006 (NSW) and must be made within 12 months of the deceased’s death, unless otherwise allowed for by the court or in the unlikely situation that all the parties agree to an extension. The eligible person must believe they have not been adequately provided for in the deceased’s Will or through the rules of intestacy.

Section 57 of the Succession Act 2006 (NSW) defines an eligible person as having the following relationship with the deceased:

• A spouse or de facto partner
• A child
• A former spouse
• A person who was wholly or partially dependent on the deceased and who is a grandchild or member of the deceased’s household
• A person who was living in a close personal relationship with the deceased at the time of their death.

An executor or administrator for the estate is entitled to defend a family provision claim, if they believe it is financially viable and in the interest of the estate. To defend against a family provision claim, they can file a Notice of Appearance in the NSW Supreme Court. It is important to have all relevant evidence when contesting the claim. This includes:

• The Will of the deceased
• Details of the deceased’s estate
• Other relevant documentation.

Section 98 of the Succession Act 2006 (NSW) requires the court to refer both parties to attend mediation, unless otherwise ordered by the court. Mediation can be used to try and resolve the matter without a formal court hearing.  Both parties will have to negotiate to see if they can reach a settlement. If no settlement can be reached, the matter will proceed to a court hearing. The court will then look at the evidence and arguments for and against the family provision claim and will make a decision. The court may decide to:

• Order provision for the claimant from the estate including any notional estate.
• Dismiss the family provision claim.
• Make other orders that the court deems appropriate.

The estate then needs to comply with the order made by the court.

It is recommended that you seek legal advice before commencing or defending a family provision claim. Contact us for a free thirty-minute consultation with a Will dispute lawyer.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

Photo by Sora Shimazaki: