Family provision claims
This section has information about who can challenge a will, a grant of Probate or a grant of Letters of Administration.
What is a family provision claim?
A family provision claim is an application to the Supreme Court of New South Wales for a share or a larger share from the estate of a deceased person.
You can make a family provision claim if you:
- are an 'eligible person', and
- have been left out of a will, or
- did not receive what you thought you were entitled to receive.
A family provision claim must be filed with the court within 12 months of the date of death (where the deceased person died on or after 1 March 2009).
It is not necessary to obtain a grant of Probate or a grant of Letters of Administration before making an application for family provision.
Who is eligible to make a family provision claim?
A family provision claim can only be made by an 'eligible person'.
An 'eligible person' includes:
- the wife or husband of the deceased
- a person who was living in a de facto relationship with the deceased (including same sex couples)
- a child of the deceased (including an adopted child)
- a former wife or husband of the deceased
- a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
- a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death.
If you are an eligible person and you think you are entitled to make a claim on the deceased estate, you should get legal advice. Your application must be made to court within 12 months from the date of the deceased's death.
If you are unsure if you are an eligible person you should get
legal advice before you make a family provision claim.
What will the court consider?
Before making an order, the court will consider the following:
- the relationship between the applicant and the deceased person
- any obligations or responsibilities owed by the deceased person to the applicant
- the value and location of the deceased person's estate
- the financial circumstances of the applicant, including their current and future financial needs
- whether the applicant is financially supported by another person
- whether the applicant has any physical, intellectual or mental disabilities
- the applicant's age
- any contribution made by the applicant to increase the value of the estate
- whether the deceased person has already provided for the applicant during their lifetime or from the estate
- whether the deceased person provided maintenance, support or assistance to the applicant
- whether any other person is responsible to support the applicant
- the applicant's character
- any applicable customary law if the deceased was Aboriginal or Torres Strait Islander
- any other claims on the estate
- any other matter the court may consider as relevant.
Before you think about making a family provision claim, you could try to resolve your dispute through mediation. Mediation is voluntary and is an effective way of resolving disputes without going to court.
In family provision claim matters, the court will refer the parties to mediation to allow the parties to reach a settlement. You can save a lot of time, money and stress by trying to settle your dispute through mediation before you make a family provision claim.
Community Justice Centres (CJC) offers free mediation services. For more information, see Community Justice Centres (CJC) website.
If you want to learn more about mediation and how it can help you, see Mediation on the Representing Yourself section of our website.
Making a claim
An application for family provision is made by filing a summons together with an affidavit in the Supreme Court of New South Wales. You will also need to pay a filing fee.
Before you decide to apply, it is important that you get
Legal costs don’t always come out from the estate. If your application for a family provision claim is unsuccessful, you may be ordered to pay all of your own legal costs as well as the costs of the defendant.
It is up to the court to make a decision about costs orders.