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 consider 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 that the Supreme Court takes in making rulings in a family provision claim. It allows the court to amend the deceased’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 the answer is yes, stage two is taken to decide 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 either 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 whether 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 that the Court to refer an application for a family provision claim to go to mediation before any hearing of the case unless there are special reasons why the applicant is unable to go to mediation.