Family Provision Claims

Family provision claims contest the fairness of the provisions of a Will. An eligible applicant may feel that they have been unfairly or unjustly left out of a Will or received a smaller share of the estate than they are entitled to. A family provision claim ensures that provisions are made for eligible persons, regardless of if there was a Will and whether the persons were mentioned in the Will. Chapter Three of the of the Succession Act 2006 (NSW) sets out the process the Supreme Court takes in making rulings in a family provision claim. It allows the court to amend the decease’s Will, based on specified grounds.

The Court has traditionally adopted a two-stage process in determining whether a further provision needs to be made. The first stage is about determining if the applicant has been left without adequate provision for his or her proper maintenance, education, and further advancement in life. If yes, stage two is deciding what provisions ought to be made.

Section 57 of the Succession Act 2006 (NSW) outlines who is eligible to make a family provision claim.

57 Eligible persons - (cf FPA 6 (1), definition of “eligible person”)

(1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

(a) a person who was the spouse of the deceased person at the time of the deceased person’s death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c) a child of the deceased person,

(d) a former spouse of the deceased person,

(e) a person—

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

A family provision claim can be made after Probate, or Letters of Administration have been granted. Applications for a family provision claim need to be made to the Supreme Court within 12 months of the person’s death, regardless of if there was a Will or the eligible party was mentioned in the Will or there is a risk the Court may not make provision for the applicant.

Section 98 of the Succession Act 2006 (NSW) requires the Court to refer an application for a family provision claim to mediation before hearing the case unless there are special reasons why the applicant cannot go to mediation.

If you are wanting to make a family provision application, we recommend you speak to a lawyer specialising in family provision claims.

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.