What is a family provision claim?
A family provision claim is an application to the Supreme Court of NSW seeking provision, or further provision, from a deceased person’s estate.
It can arise where a person receives nothing under a will or where the provision they receive is inadequate. An eligible person may also claim where the deceased died without a will.
A family provision claim does not require proof that the will is invalid. It concerns whether adequate provision has been made for an eligible applicant, rather than whether the deceased had capacity to make the will or was subjected to undue influence.
When is a friend eligible to contest a will?
Section 57 of the Succession Act 2006 (NSW) sets out the categories of eligible applicants. There is no separate category for a “friend” or “best friend”. Two categories are particularly relevant to people whose relationship with the deceased was a friendship.
Dependency and membership of the same household
Under section 57(1)(e), a friend may qualify if they were wholly or partly dependent on the deceased at some time and were, at that time or another time, a member of the deceased’s household.
Both requirements must be established. Financial support alone does not satisfy this pathway if the friend was never a member of the same household. Equally, sharing a home does not necessarily establish dependency.
Dependency and household membership do not need to have occurred simultaneously, and neither must necessarily have continued until death.
Living in a close personal relationship
Under section 57(1)(f), a friend may qualify if they were living with the deceased in a close personal relationship at the time of death.
Section 3 defines this as a relationship between two adults, other than marriage or a de facto relationship, who are living together and where one or each provides the other with domestic support and personal care. They do not need to be related.
This is a specific legal category. Being emotionally close, speaking every day or describing someone as “like family” does not, by itself, satisfy it. There are also exclusions for support and care provided for fee and reward, or on behalf of another person or an organisation.
What counts as dependency on a friend?
Dependency involves reliance on the deceased for support. It may be partial and can include accommodation and other material assistance, rather than only cash payments.
For example, a friend might provide rent-free accommodation and pay living expenses while the applicant is unable to work. If the applicant also belonged to the deceased’s household, those arrangements may support eligibility under section 57(1)(e).
By contrast, occasional meals, birthday gifts or shared holiday expenses will not necessarily establish dependency. The Court looks at the reality of the support and the extent to which the applicant relied on it.
Evidence should explain who met the expenses, what was provided, how long the arrangements lasted and why the support was needed.
Is living together as flatmates enough?
Not necessarily. Sharing an address is only part of the picture.
Two financially independent flatmates who divide rent and bills may not satisfy the dependency requirement. Ordinary shared household chores also do not automatically establish the domestic support and personal care needed for a close personal relationship.
However, arrangements can change. One friend may become ill, and the other may take on substantial responsibilities for their daily welfare. Alternatively, one may begin supporting the other financially.
We can examine the actual living arrangements and how the relationship developed, rather than relying on labels such as “flatmate” or “friend”.
Can a friend who cared for the deceased make a claim?
Potentially. A friend who lived with the deceased and provided domestic support and personal care may qualify through the close personal relationship category, even if the friend was not financially dependent on the deceased.
The direction of dependency matters under the other pathway. If the deceased relied on you, that does not establish that you were dependent on the deceased for the purposes of section 57(1)(e).
A friend who visited regularly to provide care but always lived separately will not automatically satisfy either category. Their kindness and contribution may be significant, but a family provision claim still requires legal eligibility.
Paid carers should also obtain specific advice. The statutory exclusions mean a professional care arrangement does not itself establish a qualifying close personal relationship.
What if my friend entered hospital or residential care before death?
The living arrangements at death can be important, particularly for the close personal relationship category.
A hospital admission or move into care requires careful consideration of the circumstances, including the nature and duration of the absence and whether the shared living arrangement had ended. It should not simply be assumed that every physical absence defeats the claim, or that an earlier shared home is sufficient.
Where the dependency and household category is available, historical arrangements may establish eligibility even though the parties were no longer living together when the deceased died.
Does eligibility mean the claim will succeed?
No. A friend relying on either of these categories must also establish factors warranting the application under section 59(1)(b).
This requires consideration of whether the relationship and surrounding circumstances place the applicant in a position where the deceased might reasonably have been expected to recognise them in their will. A substantial caring relationship, sustained support, contributions to the deceased’s welfare and statements about making provision may be relevant.
Under section 59, the Court must also be satisfied that adequate provision has not been made for the applicant’s proper maintenance, education or advancement in life. It then considers what provision, if any, should be ordered.
Section 60 identifies relevant matters, including the relationship, the deceased’s obligations, the estate’s size and liabilities, the applicant’s financial resources and needs, age, disability, contributions and benefits already received. Competing claims and beneficiaries’ circumstances also matter.
Financial hardship does not overcome a lack of eligibility. Equally, a long friendship does not guarantee an award or a particular share of the estate.
What if my friend promised to leave me their home?
A promise may be relevant evidence, but it does not automatically make a friend eligible for a family provision claim or establish an entitlement to the property.
If you acted in reliance on a promise, for example by giving up employment or spending substantial money on the property, there may be a separate legal claim to investigate. The precise promise, your reliance and the consequences of that reliance would need careful examination.
Keep messages, letters, financial records and details of witnesses. We can assess whether the circumstances raise a family provision claim, a separate claim or both. Different legal requirements and time limits may apply.
What evidence should you gather?
Start with a clear chronology of the friendship, shared living arrangements, financial support and care provided. Explain when the arrangements began, how they changed and what was happening around the time of death.
Useful records may include bank statements, household bills, address records, correspondence, care schedules and evidence from people who observed the relationship. Documents recording the deceased’s intentions or earlier wills may also be relevant.
You will also need evidence of your own circumstances, including income, assets, debts, superannuation, living expenses and health issues affecting your needs or earning capacity.
Specific examples are more useful than general statements such as “we were very close” or “I did everything for them”. We can help identify the evidence needed to present your position clearly.
What is the time limit to contest a friend’s will?
A family provision application generally must be filed within 12 months of the deceased’s date of death under section 58(2) of the Succession Act 2006 (NSW).
The deadline runs from death, not from probate or when you discover the will’s contents. Writing to the executor or discussing settlement does not stop the clock.
A late application may be possible if the Court permits it on sufficient cause being shown, or the parties to the proceedings consent. You should seek advice promptly rather than assume an extension will be available.
An early step is to notify the executor or their solicitor of the proposed claim, request the will and estate information, and seek an undertaking not to distribute the estate while the claim is addressed. Urgent Court relief may need consideration if protection cannot be agreed.
A probate caveat is not the appropriate way to protect a family provision claim alone. Separate grounds to challenge the will’s validity require separate advice.
Can the claim settle without a final hearing?
Yes. Family provision proceedings are generally referred to mediation, giving the parties an opportunity to negotiate a resolution. If the case does not settle, it may proceed to a final hearing.
Court-annexed mediation is available without a mediator or venue fee, although legal preparation and representation still involve costs. Private mediation is another option.
A realistic assessment of eligibility, likely provision and legal costs helps inform settlement decisions. There is no standard payout for a friend’s claim.
How can PB Ritz Lawyers help?
Claims by friends require careful attention to the legal basis for eligibility and the evidence supporting the relationship. Our practice focuses on wills and estates, including family provision claims and other will disputes.
We can assess the support and care arrangements, identify the evidence required, explain the strengths and weaknesses of the claim and pursue a negotiated outcome where possible.
We offer No Win, No Fee arrangements for approved family provision claims, subject to our assessment and the terms of our costs agreement. We explain the funding arrangement and costs risks before you decide whether to proceed. An unsuccessful applicant may be ordered to pay the other side’s costs, and a No Win, No Fee arrangement with your own solicitors does not itself remove that risk.
Did your friendship involve more than companionship?
If you shared a home, relied on your friend for support or provided substantial personal care, do not assume you have no rights simply because you were not related.
Contact PB Ritz Lawyers to discuss your circumstances. We can assess whether you qualify to claim, whether the estate has made adequate provision for you and whether your matter is suitable for a No Win, No Fee arrangement.
Early advice gives you time to establish your position and take the steps needed to protect it.
