Top Questions About Family Provision Claims in NSW

When someone passes away, questions about inheritance often arise. If you believe a loved one did not make adequate provision for you, you may be able to make a Family Provision Claim. These claims help ensure that eligible people receive proper financial provision from a deceased estate where appropriate.

This guide answers some of the most common questions about Family Provision Claims in New South Wales. The information is general in nature and should not replace legal advice tailored to your circumstances.

1. Am I Eligible to Make a Family Provision Claim?

To make a Family Provision Claim in NSW, you must qualify as an eligible person under the Succession Act 2006 (NSW). The main categories include:

• A spouse, including a former spouse.
• A person who lived in a de facto relationship with the deceased, including same-sex partners.
• A child of the deceased, including an adopted child.

The legislation also recognises certain people who depended wholly or partly on the deceased. Depending on the circumstances, this may include:

• Stepchildren.
• Grandchildren.
• Members of the deceased’s household.
• People who relied on the deceased for financial support.

Eligibility alone does not guarantee success. The court must also decide whether the deceased failed to make adequate provision for your proper maintenance, education or advancement in life. You should obtain legal advice before commencing a claim.

You can read the legislation directly on the NSW Legislation website.

2. Are There Time Limits to Make a Family Provision Claim?

Yes. NSW law imposes strict time limits.

In most cases, you must commence court proceedings within 12 months of the deceased’s date of death. Missing this deadline may prevent you from bringing a claim.

In limited circumstances, the court may allow a late application. For example, this may occur if you did not know about the death or another exceptional circumstance prevented you from filing your claim on time.

Seeking legal advice as early as possible gives you the best opportunity to protect your rights and comply with the relevant deadlines.

3. Can I Make a Family Provision Claim if There Is No Will?

Yes.

If someone dies without leaving a valid Will, they die intestate. Their estate is distributed according to the intestacy rules contained in the Succession Act 2006 (NSW).

Generally, spouses, de facto partners and children inherit under these rules. The NSW Trustee & Guardian provides further information about how intestacy works in New South Wales.

Even so, an eligible person may still need to bring a Family Provision Claim.

For example, a grandchild who depended financially on their grandparent may receive nothing under the intestacy rules. If that grandchild qualifies as an eligible person, they may ask the court to order further provision from the estate.

4. Will I Have to Go to Court for a Family Provision Claim?

Not necessarily.

Many Family Provision Claims settle through negotiation or mediation before reaching a final court hearing. The executor of the estate can often negotiate an agreement with the claimant, helping everyone avoid lengthy litigation.

Mediation usually offers several advantages:

• Lower legal costs.
• Faster resolution.
• Greater flexibility.
• Less stress for family members.

If the parties cannot reach an agreement, the matter may proceed to the Supreme Court of New South Wales, which has jurisdiction to determine Family Provision Claims.

5. What Does a Court Consider When Determining a Family Provision Claim?

Every case depends on its own facts.

When determining a Family Provision Claim, the court considers numerous factors set out in the Succession Act 2006 (NSW), including:

• The financial needs and resources of the claimant.
• The claimant’s relationship with the deceased.
• The size and nature of the estate.
• The needs of other beneficiaries.
• Any contributions the claimant made to the deceased’s welfare.
• Any disabilities or special circumstances affecting the claimant.

The court aims to achieve a fair outcome after considering the circumstances of everyone involved.

6. How Much Will It Cost to Make a Family Provision Claim?

The cost of pursuing a Family Provision Claim varies according to the complexity of the matter, legal fees, court filing fees and expert evidence that may be required.

In some successful claims, the estate pays part or all of the claimant’s legal costs. However, the court has discretion when making costs orders and will consider factors such as the outcome of the proceedings and the conduct of each party.

Discussing legal costs with your solicitor at the beginning of your matter can help you understand the likely expenses and avoid unexpected costs later.

7. How Long Will a Family Provision Claim Take?

The timeframe varies from one case to another.

Some matters settle within a few months through negotiation or mediation. More complex disputes that proceed to court can take considerably longer.

Several factors influence the duration of a claim, including:

• The complexity of the estate.
• The number of beneficiaries.
• Whether the parties negotiate effectively.
• Whether court proceedings become necessary.

Obtaining legal advice early often helps resolve disputes more efficiently and may improve the prospects of reaching an agreement without a lengthy court process.

Need Advice About a Family Provision Claim?

If you believe you have been unfairly left out of a Will or inadequately provided for, obtaining legal advice as early as possible is important. Early advice can help you understand your eligibility, protect important time limits and assess the strength of your claim.

If you would like advice about a Family Provision Claim or another estate dispute, please call (02) 4987 3344 or email [email protected].