How to Make a Family Provision Claim in NSW

How to Make a Family Provision Claim in NSW

If someone close to you has died and you have been left out of their will, or you have not received adequate provision from their estate, you may be able to make a Family Provision Claim in NSW.

A family provision claim is an application to the Supreme Court of NSW for provision, or further provision, from a deceased person’s estate. In simple terms, it is a claim that the deceased failed to make adequate provision for your proper maintenance, education or advancement in life.

Family provision claims are often made by spouses, de facto partners, children, adult children, former spouses, grandchildren, dependants and people who lived in a close personal relationship with the deceased.

However, not every person who feels disappointed by a will can make a claim. The Court does not simply rewrite a will because someone believes it is unfair. To make a successful family provision claim, you must usually show that:

1. you are an eligible person;
2. the claim is brought within time;
3. the deceased did not make adequate provision for you; and
4. the estate, or notional estate, is sufficient to justify an order.

This article explains how to make a family provision claim in NSW and what you should consider before taking action.

What is a family provision claim?

A family provision claim is not a challenge to the validity of the will.

This is an important distinction.

If you say the will is invalid because the deceased lacked testamentary capacity, was pressured, or did not know and approve of the will, that is a different type of estate dispute. A family provision claim usually accepts that the will is valid, but argues that the will, or the intestacy rules, failed to make adequate provision for an eligible person.

For example, a family provision claim may arise where:

• a spouse receives little or nothing from the estate;
• an adult child is excluded from the will;
• one child receives significantly less than their siblings;
• a de facto partner is not recognised in the will;
• a grandchild was dependent on the deceased;
• a person who lived with and cared for the deceased receives no provision;
• the deceased left most of the estate to one beneficiary, leaving another person in financial difficulty.

The key question is not simply whether the will is unequal. The key question is whether adequate provision has been made for the particular applicant, having regard to the relationship, financial circumstances, estate size and competing claims.

Step 1: Get legal advice as early as possible

The first step is to obtain advice quickly.

Family provision claims are time-sensitive. In NSW, an application must generally be filed within 12 months from the date of death.

This means the deadline runs from the date the person died, not from the date you receive a copy of the will, not from the date probate is granted, and not from the date you find out you have been left out.

If you miss the 12-month time limit, you may still be able to apply out of time, but you will usually need to explain the delay. This can make the claim more difficult and more risky.

Early advice can help you understand:

• whether you are eligible;
• whether the time limit is approaching;
• whether urgent steps are needed to prevent distribution of the estate;
• what evidence you need; and
• whether the claim has reasonable prospects.

Step 2: Confirm whether you are an eligible person

A family provision claim can only be made by an eligible person.

In NSW, eligible persons commonly include:

• the deceased’s wife or husband;
• a person who was living in a de facto relationship with the deceased;
• a child of the deceased, including an adopted child;
• a former wife or husband of the deceased;
• a person who was wholly or partly dependent on the deceased and was either a grandchild of the deceased or a member of the deceased’s household at a particular time;
• a person who was living in a close personal relationship with the deceased at the time of death.

Some applicants, such as spouses and children, are usually eligible by status alone. Other applicants, such as some grandchildren, household members or people claiming a close personal relationship, may need to prove additional matters such as dependency, household membership or factors warranting the making of the application.

This is where many claims succeed or fail at an early stage.

For example, a biological or adopted child of the deceased is generally an eligible person. A stepchild, however, is not automatically treated the same way in NSW. A stepchild may need to rely on another category, such as dependency and household membership.

Step 3: Understand what the Court considers

Being eligible does not mean you automatically receive provision from the estate.

The Court considers whether adequate provision has been made for your proper maintenance, education or advancement in life. Section 59 of the Succession Act 2006 (NSW) refers to whether adequate provision has been made for the applicant’s proper maintenance, education or advancement in life, and whether an order ought to be made from the estate.

The Court may consider matters including:

• your relationship with the deceased;
• the nature and duration of that relationship;
• your financial circumstances;
• your present and future needs;
• your age and health;
• whether you have any physical, intellectual or mental disability;
• the size and nature of the estate;
• the financial circumstances of other beneficiaries;
• any contributions you made to the deceased or the estate;
• whether the deceased provided for you during their lifetime;
• whether you were dependent on the deceased;
• any competing claims on the estate;
• your conduct, where relevant;
• any other matter the Court considers relevant.

This is why family provision claims are highly fact-specific. Two adult children may both be eligible, but the outcome may be very different depending on their financial position, health, relationship with the deceased, the size of the estate and the needs of other beneficiaries.

Step 4: Obtain a copy of the will and estate information

Before making a family provision claim, you need to understand what the will says and what assets are in the estate.

Important documents may include:

• the deceased’s final will;
• any earlier wills;
• the death certificate;
• the grant of probate or letters of administration, if already obtained;
• the executor’s inventory of property;
• real estate appraisals and valuations;
• bank account details;
• share portfolio details;
• superannuation information;
• life insurance information;
• business or company records;
• trust documents, where relevant;
• details of debts and liabilities;
• details of gifts or transfers made before death.

In some cases, there may also be a question about notional estate. NSW has notional estate provisions that can, in limited circumstances, allow the Court to designate property that is not presently part of the estate as property available for a family provision order. This can be relevant where assets passed outside the estate, such as certain jointly held assets, superannuation, or property transferred before death.

Notional estate can be a complex area. It should be considered early, particularly where the estate appears small but significant assets passed outside the will.

Step 5: Gather evidence about your circumstances

A family provision claim is usually won or lost on evidence.

The Court will not simply accept that you need money or that the will was unfair. You need to prove your financial circumstances, needs and relationship with the deceased.

Evidence may include:

• bank statements;
• credit card statements;
• mortgage statements;
• rental documents;
• payslips;
• tax returns;
• Centrelink records;
• superannuation statements;
• medical reports;
• evidence of disability or health issues;
• evidence of caring responsibilities;
• details of dependants;
• evidence of your relationship with the deceased;
• evidence of financial or non-financial contributions;
• documents showing promises, expectations or support from the deceased;
• evidence of estrangement and the reasons for it, if relevant.

Your affidavit should tell your story clearly. It should explain who you are, your relationship with the deceased, your financial position, your needs, and why you say the provision made for you was inadequate.

The goal is not to attack the deceased unnecessarily. The goal is to present the relevant facts in a credible, admissible and organised way.

Step 6: Consider whether the estate may be distributed

If an executor distributes the estate before a claim is made, this can complicate matters and make it harder to succeed with the claim. In some situations, urgent steps may be required to prevent final distribution.

A person making a family provision claim should not assume that filing a probate caveat is the correct step. A probate caveat is generally used where there is a dispute about whether a grant of probate should be made, such as where a person is challenging the validity of a will.

When we are engaged to act in a family provision claim, one of the first steps we usually take is to write to the solicitor acting for the executor and request confirmation that the estate will not be distributed pending the resolution or determination of the claim.

Step 7: File a summons and affidavit in the Supreme Court of NSW

A family provision claim is commenced in the Supreme Court of NSW.

The claim is usually started by filing a summons and a supporting affidavit.

The summons identifies the orders sought. The affidavit sets out the evidence relied upon in support of the claim.

The affidavit is very important. It should usually deal with:

• the deceased’s date of death;
• your relationship with the deceased;
• the will or intestacy position;
• the estate assets and liabilities, to the extent known;
• your financial circumstances;
• your health and personal circumstances;
• your accommodation needs;
• your income and expenses;
• your assets and liabilities;
• your relationship history with the deceased;
• any dependency;
• any contributions made by you;
• any competing beneficiaries and their apparent needs;
• why the provision made for you is inadequate.

Family provision proceedings are managed in the Probate and Family Provision List.

Practice Note SC EQ 07 applies to the Probate and Family Provision List, and family provision applications are usually managed by the Registrar in Probate on Thursdays.

Step 8: Serve the executor or administrator

After proceedings are filed, the claim needs to be served on the appropriate defendant.

In most cases, the defendant will be the executor named in the last will or the administrator of the estate. The executor’s role is to represent the estate and place relevant evidence before the Court.

The executor may need to provide information about:

• the assets and liabilities of the estate;
• the beneficiaries;
• the deceased’s family circumstances;
• competing claims;
• the history of the estate administration;
• any distributions already made;
• any known notional estate issues.

Beneficiaries whose interests may be affected by the claim may also become involved in the proceedings.

Step 9: Exchange evidence

Once the claim is underway, the parties will usually exchange affidavit evidence.

The plaintiff’s evidence will usually focus on eligibility, relationship, financial need, health, accommodation, dependency, contributions and reasons why further provision should be made.

The executor’s evidence will usually focus on the estate, beneficiaries, competing claims and any response to the plaintiff’s case.

Other beneficiaries may also file evidence, particularly if their entitlement may be reduced if the claim succeeds.

This stage is important because it allows each side to assess the strengths and weaknesses of the claim before mediation.

Step 10: Attend mediation

Most family provision claims resolve at or before mediation.

After the parties have filed their evidence, the Court will usually refer the matter to mediation. If the matter does not settle at mediation, it will usually be listed for final hearing.

Mediation is a private process where the parties try to resolve the dispute with the assistance of a mediator.

The mediator does not decide the case. Their role is to help the parties identify the real issues, consider the strengths and weaknesses of their positions, and explore whether the claim can be resolved by agreement.

There are generally two types of mediation in family provision claims:

• Court-annexed mediation, where the mediation is conducted through the Court and is generally free to the parties; and
• Private mediation, where the parties jointly appoint and pay for an independent mediator.

Private mediation can be useful where the estate is large, the issues are complex, there are multiple parties, or the parties want more control over the choice of mediator and the time allocated to the mediation.

Mediation can be particularly effective in family provision claims because it allows the parties to consider practical outcomes, including:

• a lump sum payment;
• transfer of property;
• payment from sale proceeds;
• payment of legal costs;
• timing of payment;
• releases and final orders.

A good mediation strategy is not simply about choosing a number. It requires careful consideration of the evidence, likely hearing outcome, legal costs, estate size, competing claims and the risks of proceeding.

Step 11: Settle the claim or proceed to hearing

If the matter settles, the parties will usually document the agreement and seek final orders.

If the matter does not settle, it may proceed to a final hearing. At a hearing, the Court will consider the evidence and decide whether any provision should be made.

The Court may dismiss the claim, make a lump sum order, adjust the distribution of the estate, make orders affecting particular property, or make other orders depending on the circumstances.

A hearing can be expensive and stressful. It can also involve costs risks.

Legal costs do not always come out of the estate. An unsuccessful applicant may be ordered to pay their own costs and, in some cases, the costs of the executor or another party.

For this reason, settlement should always be considered carefully. That does not mean a claimant should accept an unfair outcome where the evidence supports the claim.

How long does a family provision claim take?

The timeframe depends on the estate, the number of parties, the complexity of the evidence and whether the matter resolves at mediation.

Some claims resolve within a few months. Others take longer, particularly where there are disputes about estate assets, notional estate, competing beneficiaries, capacity, informal wills, overseas assets or complex financial circumstances.

The biggest factors affecting timing are usually:

• how quickly estate information is obtained;
• whether the executor cooperates;
• whether valuations are required;
• whether the parties exchange evidence promptly;
• whether mediation is successful;
• whether the matter needs a final hearing.

Can you make a family provision claim before probate?

Yes.

You do not need to wait until probate or letters of administration have been granted before making a family provision claim.

This is important because the 12-month time limit runs from the date of death, not from the date probate is granted. If you believe you may have a claim, you should obtain advice as early as possible.

If you believe you have a claim, you should obtain advice before the deadline approaches.

Can you make a family provision claim after 12 months?

It may be possible, but it is riskier.

If the 12-month period has expired, you may need the Court’s permission to bring the claim out of time. The Court will consider the reasons for delay, whether the estate has been distributed, whether the beneficiaries would suffer prejudice, and the apparent strength of the claim.

Do not assume the Court will grant an extension. If you are outside the time limit, you should obtain urgent advice.

What makes a strong family provision claim?

A strong family provision claim usually has a combination of factors.

These may include:

• clear eligibility;
• real financial need;
• a close relationship with the deceased;
• a history of dependency or support;
• significant contributions to the deceased or estate;
• inadequate or no provision under the will;
• an estate large enough to make further provision;
• weaker competing claims from other beneficiaries;
• credible and complete financial disclosure;
• clear evidence explaining any estrangement.

However, no single factor guarantees success. A person may have financial need but a weak relationship. Another person may have a strong relationship but limited need. Another may be eligible but face powerful competing claims.

The Court undertakes a broad evaluative assessment.

Common mistakes when making a family provision claim

Waiting too long

The 12-month time limit is one of the most important issues. Delay can affect both the ability to bring the claim and the practical recovery from the estate.

Assuming unfairness is enough

A will can be unequal without giving rise to a successful family provision claim. The issue is whether adequate provision has been made for the applicant.

Failing to provide full financial disclosure

Applicants need to be open about their financial position. Hiding assets, understating income or failing to disclose financial support can damage credibility.

Ignoring the needs of other beneficiaries

The Court does not consider the applicant in isolation. Competing beneficiaries may also have needs, disabilities, dependants or financial hardship.

Treating a family provision claim like a probate challenge

A family provision claim is usually not a claim that the will is invalid. Filing a caveat may not be appropriate if the only complaint is inadequate provision.

Not considering notional estate

In NSW, some assets outside the estate may still be relevant. This can be important where the deceased’s estate appears modest but significant assets passed outside the will.

Going to mediation unprepared

Mediation is often the best opportunity to resolve the claim. Poor preparation can lead to missed opportunities or unrealistic expectations.

Do you need a lawyer to make a family provision claim?

A person can represent themselves, but family provision claims are complex.

You need to understand eligibility, limitation periods, affidavit evidence, estate disclosure, mediation, costs and the principles applied by the Court. The Supreme Court of NSW encourages people intending to lodge a family provision claim to seek independent legal advice because this is a complex area of law.

A lawyer experienced in family provision claims can help you:

• assess whether you have a viable claim;
• identify urgent deadlines;
• obtain estate information;
• prepare your evidence;
• value the claim;
• negotiate with the executor;
• prepare for mediation;
• understand litigation risk;
• resolve the matter where possible.

Why choose PB Ritz Lawyers?

At PB Ritz Lawyers, we focus on wills and estates disputes, including family provision claims in NSW.

We act for people who have been left out of a will, people who have received inadequate provision, and executors who need to respond to claims. Because we work in this area regularly, we understand the practical and emotional pressure these disputes can create.

A family provision claim is not just about legal principles. It is about presenting your circumstances clearly, understanding the estate, identifying the real issues, and developing a strategy that gives you the best chance of achieving a sensible outcome.

If you are thinking about making a family provision claim in NSW, we can help you understand where you stand and what steps should be taken next.

Do you offer No Win, No Fee family provision claims?

Yes. At PB Ritz Lawyers, we offer No Win, No Fee arrangements for approved family provision claims.

This means that, subject to the terms and conditions of our costs agreement, if we agree to act for you on a No Win, No Fee basis, you do not need to pay our professional fees unless your claim is successful.

We also finance the usual disbursements required to run your claim, such as filing fees, service fees, medical reports, valuation fees and barrister’s fees where required. If your claim is unsuccessful, you do not need to repay those disbursements to us.

No Win, No Fee arrangements are not available in every case. Before offering this arrangement, we need to assess the strength of your claim, your eligibility, the size of the estate, the evidence available, the likely costs involved, and the prospects of achieving a successful outcome.

If you are considering making a family provision claim in NSW but are concerned about legal costs, contact us. We can assess your circumstances and advise whether your claim may be suitable for a No Win, No Fee arrangement.

Conclusion

If you have been left out of a will, or you have received less than you expected, you may have rights under NSW family provision law. However, strict time limits apply, and the strength of your claim will depend on your eligibility, financial circumstances, relationship with the deceased, the size of the estate and the needs of other beneficiaries.

The earlier you obtain advice, the better placed you are to protect your position.

If you are considering making a family provision claim in NSW, contact PB Ritz Lawyers. We can review the will, assess your eligibility, explain your prospects and guide you through the next steps.