In NSW, an eligible person can apply for a family provision order if adequate provision has not been made for their proper maintenance, education or advancement in life. Financial hardship can be an important part of that claim, but it does not guarantee an inheritance.
You do not necessarily need to be destitute, unemployed or financially dependent on the deceased to have a claim. The Court considers your circumstances alongside your relationship with the deceased, the estate and the competing claims of others.
Can financial hardship give me a right to contest a will?
Financial hardship may support a family provision claim, but you first need to be an eligible person. A person cannot claim simply because they need money and knew the deceased.
Section 57 of the Succession Act 2006 (NSW) identifies the eligible categories. These include spouses, de facto partners at death, children and former spouses. Other categories include certain people who were dependent on the deceased and a grandchild or member of the deceased’s household, and people living in a qualifying close personal relationship with the deceased at death.
The precise requirements matter, particularly for grandchildren, stepchildren, friends and other household members. Dependency alone does not necessarily establish eligibility. For certain categories, the Court must also be satisfied that there are factors warranting the application.
If you are an adult child, you do not need to establish dependency to fall within the child category. However, eligibility gives you the right to apply, not an automatic right to an order.
What does the Court need to decide?
Under section 59 of the Succession Act 2006 (NSW), the Court considers whether adequate provision has been made for your proper maintenance, education or advancement in life. If it has not, the Court determines what provision, if any, ought to be made.
This is not simply an exercise in making the will equal or deciding which beneficiary has the lowest income. The assessment is personal to you and the particular estate.
For example, an adult child with insecure accommodation, limited earning capacity and ongoing treatment expenses may have needs requiring careful consideration. Whether those needs justify an order will also depend on the deceased’s obligations, the relationship history, available assets and the position of other people with claims on the estate.
How does the Court assess financial need?
Section 60 of the Succession Act 2006 (NSW) allows the Court to consider a range of matters. Financial resources, earning capacity and present and future financial needs are expressly relevant.
Your bank balance is only part of the picture. A proper assessment considers what you own, what you owe, your income, reasonable expenses and the resources realistically available to you.
Housing and accommodation
Housing can be a substantial issue. You may be renting on a limited income, facing mortgage arrears, living temporarily with relatives or occupying accommodation that will no longer be available.
Explain your actual arrangements and what you reasonably need. A claim for housing provision should be supported by evidence about costs and practical options. Needing accommodation does not automatically entitle you to the deceased’s home or enough money to purchase a property outright.
Income and earning capacity
The Court can consider both what you earn and your capacity to earn. Age, qualifications, work history, health and caring responsibilities may help explain why your income is limited.
If you cannot work, or can work only reduced hours, supporting evidence is important. If your earnings fluctuate, provide a representative picture rather than relying on one unusually low month.
Health and future expenses
Ongoing illness or disability may affect both income and expenditure. Medical reports, treatment plans and reliable cost estimates can help explain those effects.
Future needs should have a proper basis. For example, evidence of likely treatment, necessary home modifications or reduced capacity to work will usually be more useful than a general statement that your expenses might increase.
Debts and other liabilities
Mortgage balances, personal loans, credit cards and other debts may be relevant. Explain the amount outstanding, the repayment obligations and how the debts arose.
The estate is not automatically responsible for clearing every debt. A realistic claim distinguishes genuine liabilities and reasonable needs from unsupported amounts or expenditure that cannot be justified.
Your partner’s circumstances
If you are cohabiting with another person, that person’s financial circumstances may also be considered. A complete account of household finances helps show how expenses are met and what support is actually available.
Having a partner with an income does not automatically defeat a claim. Equally, omitting their contribution can give a misleading picture of your financial position.
Do I have to be poor to make a claim?
No. There is no single income or asset threshold that determines every family provision claim.
You may have a job, some savings or an interest in a home and still have circumstances worth assessing. For example, a person approaching retirement may own a heavily mortgaged property but have limited income and significant health expenses.
However, substantial resources and secure income may make it harder to establish inadequate provision. The issue is whether further provision is justified in the circumstances, not whether receiving an inheritance would improve your finances.
Does it matter why I am struggling financially?
The explanation can matter. Illness, relationship breakdown, caring responsibilities and disrupted employment may help explain your current position and likely future needs.
Financial mistakes do not automatically prevent a claim, but the Court is not required to repair every consequence of past decisions. Your circumstances should be addressed candidly, including any issues the executor or beneficiaries are likely to raise.
Avoid transferring assets, increasing debts or changing financial arrangements in an attempt to make your claim appear stronger. A clear and accurate account is essential to obtaining useful advice and presenting credible evidence.
What if my siblings are financially comfortable?
The financial circumstances of other beneficiaries can be relevant. If they have secure housing and substantial resources while you face significant unmet needs, that difference may be part of the assessment.
It does not follow that you are entitled to an equal or greater share. The Court also considers the relationship with the deceased, previous gifts, contributions, obligations and the estate’s size.
A surviving spouse may have substantial housing and financial needs of their own. Other beneficiaries may have disabilities, dependants or limited income. A claim must be assessed against those competing circumstances, rather than by considering your needs in isolation.
What if the will explains why I was excluded?
A statement that you should receive nothing does not, by itself, prevent a family provision application. The deceased’s intentions and reasons can be relevant, but the Court still applies the statutory test.
If the reasons include allegations about your conduct or inaccurate statements about your finances, tell us early. Documents and a clear chronology may help address them.
Estrangement also requires careful consideration. Its duration, causes and surrounding circumstances can matter. Financial hardship does not erase the relationship history, and a difficult relationship does not automatically rule out a claim.
What evidence should I prepare?
Begin with a clear summary of your assets, liabilities, income and regular expenses. The figures should be supported by documents wherever possible.
Useful records include bank statements, payslips, tax returns, Centrelink statements, superannuation statements, mortgage and loan statements, rental documents and evidence of medical expenses. Include jointly held assets, business interests and financial support received from others.
Prepare a realistic household budget. Separate ordinary recurring expenses from one-off costs and explain any estimates. If you have postponed treatment, repairs or other necessary spending because you cannot afford it, identify the need and obtain supporting estimates where possible.
Full disclosure matters. Missing accounts, underestimated income or incomplete information about property can undermine the reliability of your evidence. Tell us about potential difficulties at the outset so they can be addressed properly.
You should also provide the will if available, the date of death, information about the estate and a summary of your relationship with the deceased. Financial documents alone do not establish the whole claim.
How much provision could I receive?
There is no standard percentage or calculator that reliably determines an award.
Any provision must be assessed against your circumstances, the estate’s net value and the competing claims. A large need does not necessarily mean the estate can meet it. A substantial estate does not automatically justify a substantial award.
The practical value of pursuing a claim also matters. Legal costs can reduce the funds available, particularly in a modest estate. We can assess the likely benefit, risks and scope for settlement before recommending a course of action.
What is the time limit and how do I protect my position?
Under section 58 of the Succession Act 2006 (NSW), an application generally needs to be filed within 12 months of death. The period does not start when you receive the will or when probate is granted.
If the deadline has passed, obtain advice promptly. An application out of time requires a basis under the legislation, such as an order on sufficient cause being shown or the parties’ consent. Financial hardship does not automatically extend the deadline.
Early steps may include notifying the executor or their solicitor of your intended claim and requesting an undertaking not to distribute the estate, or an appropriate reserve. Written notice does not itself freeze the estate or stop the filing deadline. If distribution is imminent, proceedings and court protection may need to be considered.
A probate caveat is not ordinarily the way to protect a claim based solely on inadequate provision. It concerns the grant and requires an appropriate basis, such as a genuine dispute about validity.
Can I pursue a claim if I cannot afford legal fees?
We understand that someone seeking provision may not have funds available to pay legal fees as the matter progresses.
PB Ritz Lawyers offers No Win, No Fee arrangements for approved family provision claims, subject to our costs agreement. We can explain how professional fees and funded disbursements are treated, the conditions that apply, and circumstances in which payment may become due.
Speak to PB Ritz Lawyers about your circumstances
If you have been left out of a will and are struggling financially, do not assume that having a job, owning some assets or being an independent adult means you cannot claim.
PB Ritz Lawyers can assess your eligibility, identify the evidence needed to explain your financial position, and advise whether seeking provision is worthwhile. We can also take steps to protect your position while exploring a negotiated resolution.
Contact us with the date of death, your relationship to the deceased and any information you have about the will and estate. You do not need to have every document ready before seeking initial advice, particularly if a deadline or proposed distribution is approaching.
