In NSW, an adult child who has been left out of a parent’s will may be able to make a family provision claim. The care you provided can be an important part of that claim, particularly where it affected your income, savings, health or housing. However, caring for a parent does not automatically give you a right to inherit their estate.
The central question is whether adequate provision has been made for your proper maintenance, education or advancement in life. This article explains how caring responsibilities can affect that assessment and what you should do if you have been left out.
Can I contest my parent’s will if I was their carer
A child of the deceased is an eligible applicant under section 57(1)(c) of the Succession Act 2006 (NSW). This includes adult children. You do not have to establish that you were financially dependent on your parent or lived with them to qualify as their child.
Eligibility is the starting point. Under section 59, the Court considers whether the provision made for you is inadequate and, if so, what provision should be made. Your circumstances at the time the Court considers the application matter.
You can seek provision where you received nothing. You can also seek further provision where you received an inheritance that does not adequately address your circumstances. Neither exclusion nor a small gift guarantees success.
This article concerns a claim against your own parent’s estate. If you cared for a step-parent, parent-in-law or another relative, the eligibility requirements need separate consideration.
How the Court considers care provided to a parent
Section 60(2)(h) expressly allows the Court to consider contributions to the deceased’s welfare, their family’s welfare and their estate, where the applicant did not receive adequate consideration. Those contributions can be financial or non-financial.
Care may have involved preparing meals, cleaning, shopping, helping with personal care, arranging medical treatment or attending appointments. It may also have involved overnight supervision, supporting a parent with dementia, managing household affairs or coordinating paid carers so your parent could stay at home.
The detail matters. Explain what you did, how often, over what period and how much support your parent required. Regular assistance over many years and intensive care during a shorter period can both be relevant. The Court will assess the evidence in the context of the relationship and the other circumstances.
A family provision claim is not ordinarily calculated by multiplying hours of care by an hourly rate. Care is a factor in deciding whether proper provision has been made, rather than an automatic entitlement to wages or a particular percentage of the estate.
What if caring affected my employment and retirement savings
Caring for a parent can have consequences long after their death. You may have left employment, declined a promotion, reduced your hours or used savings to cover daily expenses. Returning to work may be difficult because of your age, health or time away from the workforce.
Under section 60(2)(d), the Court may consider financial resources, earning capacity and present and future financial needs. Evidence of lost earnings or reduced superannuation can help explain why your current position is different from what it might otherwise have been.
For example, an adult child who stopped working to provide care and now rents with limited savings may have a different claim from a child with substantial assets and a secure income. That does not determine the outcome by itself. The size of the estate, the parent’s responsibilities and the needs of other beneficiaries also matter.
We can help identify the financial effects that can be supported by records. It is important to distinguish actual losses and reasonable future needs from assumptions about what your career might have become.
What if I lived with my parent and now need somewhere to live
Housing can be a pressing concern where you moved into your parent’s home to care for them and the will leaves that property to someone else. You may be asked to leave despite having limited funds to rent or purchase another home.
Living in the property does not automatically give you ownership or a permanent right to remain there. However, your housing position and the circumstances in which you moved in can be important to a family provision claim.
Tell us promptly if the executor proposes selling the home, asks you to vacate or gives you a deadline. We can assess your position, seek an undertaking concerning distribution of the estate and consider whether other protective steps are needed. A request for an undertaking is not itself a Court order and should not be treated as guaranteed protection.
Depending on the circumstances, provision may involve money for accommodation or another arrangement. There is no automatic right to receive the particular home in which you cared for your parent.
Does receiving a carer payment or free accommodation affect my claim
Receiving a government carer payment or allowance does not automatically prevent you from making a claim as your parent’s child. The wording of section 60(2)(h) excludes a pension or other benefit from the consideration referred to in that paragraph.
Payments from your parent, gifts, reimbursement of expenses and accommodation arrangements still need to be disclosed and examined. For example, an executor may argue that you were already supported through regular payments or living rent-free. We can consider what those arrangements actually involved and how they relate to the care you provided.
There is a difference between being reimbursed for groceries you purchased for your parent and receiving payment for your time. Accurate records help explain that difference. Disclosing benefits you received also allows us to assess the claim realistically from the outset.
What if my parent promised to leave me the house
A parent may have said that you would be looked after, receive their home or inherit a larger share because of the care you provided. Keep any messages, letters, earlier wills or other records of those statements. Identify anyone who heard the discussions.
Evidence of your parent’s intentions can be relevant under section 60(2)(j). However, a promise does not automatically establish an entitlement to the promised property through a family provision claim.
Tell us if you changed your position because of a specific promise, such as giving up employment, selling your home or paying for substantial renovations. That may require advice about rights beyond family provision. The legal basis, evidence and time limits for any separate claim need individual assessment.
What if my sibling did little but inherited everything
It can be particularly difficult to accept exclusion where a sibling who provided little care receives most or all of the estate. The Court can consider your contributions, but it does not simply divide an estate according to which child did the most.
The broader matters in section 60 include the estate’s value and liabilities, the nature of family relationships, financial circumstances, health, previous provision and competing responsibilities. A sibling’s financial needs may be relevant even if their involvement in caring was limited.
The most useful evidence therefore connects your care to the relationship with your parent and your own position. Focus on what you did, the sacrifices involved and the provision you reasonably need. General allegations that another beneficiary was undeserving are unlikely to explain those matters adequately.
Do I need to prove the will was invalid
No. A family provision claim can be brought even if the will is valid and accurately records your parent’s wishes. You do not have to prove that your sibling pressured your parent or that your parent lacked testamentary capacity.
A challenge to the validity of a will is a different type of proceeding. If there are specific concerns about the circumstances in which the will was made, we can assess those separately. An unexpected or disappointing inheritance is not, by itself, proof that the will is invalid.
What evidence should I keep
Start by preparing a chronology of your caring role. Record when it began, where each of you lived, your parent’s changing needs and the assistance you provided. If dates or hours are estimates, identify them as estimates.
Useful supporting material may include appointment calendars, messages arranging care, correspondence with health professionals, receipts for expenses, bank records and documents showing changes to your employment. People who observed your care, such as neighbours, relatives or support workers, may also be able to provide evidence.
Your financial evidence is equally important. Gather records of your income, assets, debts, superannuation, living expenses, health needs and housing position. Complete disclosure matters, including financial support you receive and accounts or assets held jointly with others. Missing accounts or understated income can damage the assessment and presentation of a claim.
You do not need a perfect set of documents before contacting us. We can help identify what is available, what is missing and which evidence is most useful. Preserve original records and avoid altering messages or creating entries that appear to have been written at the time of the events.
How long do I have to make a claim
Under section 58(2), a family provision application generally must be filed within 12 months of your parent’s death. The period does not start when probate is granted or when you first receive a copy of the will.
A late application may proceed where the Court orders otherwise on sufficient cause being shown or the parties to the proceedings consent. Do not assume that an extension will be available.
Negotiations, informal family discussions and a letter to the executor do not stop the limitation period. If the deadline is approaching or has already passed, obtain advice urgently. You do not need to wait for probate before seeking advice or commencing an application.
What should I do first
Obtain a copy of the will and confirm the date of death. A child is among the people entitled to inspect or obtain a copy of a deceased person’s will under section 54, with a copy supplied at their expense.
We can write to the executor or their solicitor to notify them of the proposed claim, seek information about the estate and request an undertaking not to distribute it while your position is addressed. Where necessary, we can advise about an application to restrain distribution under section 62.
Do not lodge a probate caveat solely because you want to make a family provision claim. A caveat concerns the making of a grant and requires a proper basis. We can advise if you also have grounds to challenge the will’s validity.
Obtain advice before signing a settlement, release or document confirming that you accept the estate arrangements in full satisfaction of your rights.
Will the matter have to go to a hearing
A claim may resolve through negotiation or mediation. Under the Supreme Court’s Probate and Family Provision List Practice Note, family provision proceedings are generally referred to mediation at the earliest practicable stage unless otherwise ordered.
Court-annexed mediation does not charge for the mediator or rooms, although legal representation still involves costs. A private mediator is another option and charges a fee. We can discuss the appropriate process, the evidence needed and a realistic settlement position.
If the matter does not settle, the Court may need to determine it. The value of the estate, prospects of success and likely costs should all inform the decision to continue. A claimant may be ordered to pay another party’s costs, particularly if unsuccessful. The estate does not automatically pay everyone’s legal costs.
How PB Ritz Lawyers can help
PB Ritz Lawyers advises adult children bringing family provision claims and also acts for executors and beneficiaries defending them. That experience helps us assess both the strengths of your case and the issues likely to be raised in response.
We can examine the care you provided, the effect on your finances and housing, the available estate and the needs of other beneficiaries. We then advise on the evidence, the provision to seek and the practical options for resolving the dispute.
We offer No Win, No Fee arrangements for approved family provision claims, subject to assessment and our costs agreement. For approved claims under those arrangements, we finance disbursements and do not require repayment if the claim is unsuccessful, in accordance with the agreement. We also work with leading counsel on a No Win, No Fee basis.
If you were left out of a will after caring for a parent, contact PB Ritz Lawyers to discuss your circumstances. Tell us when your parent died, what care you provided and whether there are immediate concerns about your home or distribution of the estate. Early advice can help you protect your position and decide whether to pursue a claim.
