The short answer is yes: as a child of the deceased, you may be able to contest the will in NSW by making a family provision claim. Your parent’s decision to leave everything to their partner does not automatically prevent you from obtaining provision.
However, being a child does not guarantee an inheritance. The strength of your claim depends on your circumstances, the estate and the competing needs of the surviving partner and others.
At PB Ritz Lawyers, we can assess whether you have grounds to claim and advise how to protect your position before the estate is distributed.
Can my parent legally leave everything to their partner?
A parent can make a will leaving their estate to their spouse or de facto partner. NSW law does not require every will to divide assets equally between children or reserve a fixed percentage for them.
That freedom is subject to family provision legislation. Under section 59 of the Succession Act 2006 (NSW), the Court can order provision for an eligible applicant where adequate provision has not been made for their proper maintenance, education or advancement in life.
This means that a valid will can still be the subject of a successful family provision claim. You do not need to prove that the partner acted improperly or that your parent lacked capacity simply to bring this type of claim.
Am I eligible if I am an adult and financially independent?
Under section 57(1)(c) of the Succession Act 2006 (NSW), a child of the deceased is an eligible person. There is no upper age limit, and financial dependency is not a requirement for eligibility in that category.
Having a job, being married or owning a home does not automatically rule you out. However, these circumstances matter when deciding whether further provision is justified.
There is a distinction between being entitled to apply and having a claim likely to succeed. A financially secure adult child may face substantial difficulty establishing that provision should be made, particularly where the estate is modest and the surviving partner has significant needs.
Our article on adult children contesting a will in NSW explains this distinction further.
Does the surviving partner take priority over the children?
A surviving spouse or de facto partner may have a strong claim to financial security and suitable accommodation. That can significantly limit what is available for adult children, especially where the family home represents most of the estate.
However, there is no automatic rule that leaving everything to a partner defeats a child’s claim. The Court examines the particular circumstances rather than applying a fixed division between partner and children.
For example, a partner with limited savings, poor health and no other home presents different considerations from a partner who owns substantial assets and has an independent income. Similarly, an adult child with a disability and insecure accommodation presents different considerations from one with substantial assets and a high income.
These are illustrations of relevant differences, not predictions of a particular result. The estate must be considered as a whole, including its debts and the needs of everyone with competing claims.
What will the Court consider?
Section 60 of the Succession Act 2006 (NSW) identifies matters the Court may consider. A well-prepared claim explains how those matters affect your actual circumstances.
Your financial position and future needs
Relevant evidence may include your income, earning capacity, assets, superannuation, debts and reasonable living expenses. Housing insecurity, health problems, disability and responsibilities to support others may also matter.
The Court can consider the financial circumstances of a person with whom you live. Full disclosure is essential. A claim should identify genuine needs and explain their practical consequences, rather than simply seek the inheritance you expected.
Your relationship with your parent
The nature and duration of the relationship, contact, support and contributions can be relevant. If you provided care, helped with a business or contributed to property, explain what you did and retain supporting records.
If there was estrangement, the reasons and surrounding circumstances may need careful examination. A breakdown in contact does not automatically end eligibility, but it can affect the merits of a claim.
The partner’s circumstances and relationship
The Court may consider the partner’s resources, health, needs and contributions, together with the nature of their relationship with your parent. Describing someone as the “new partner” does not answer those questions.
A relatively short relationship may be relevant, but it does not make the partner’s position insignificant. Equally, a lengthy relationship does not make the will immune from a claim.
The estate and provision already received
The size and nature of the estate affect what provision is possible. Earlier gifts, financial support and benefits received outside the will may also be relevant.
A substantial estate may offer greater scope to meet competing needs. It does not create an automatic entitlement to a particular amount or percentage.
What if the assets originally belonged to both my parents?
You may feel particularly strongly where your surviving parent inherited assets from your mother or father and later left them to a new partner. The history of those assets may be relevant to the circumstances of the claim.
However, an expectation that “the family money should come back to the children” does not, by itself, establish ownership or an entitlement to inherit. Assets inherited outright generally become the recipient’s property.
The position may differ if an earlier will created a trust, life interest or another enforceable arrangement. We can examine the earlier will, property ownership and any relevant agreements to identify whether there are rights beyond a family provision claim.
The partner says I will inherit when they die. Should I wait?
Do not assume that a promise of a later inheritance protects your position.
If the partner receives assets outright, they may generally spend or dispose of them and change their own will, subject to any enforceable obligations. Their circumstances may also change through illness, care costs or another relationship.
Two people making similar wills does not, by itself, establish a binding agreement preventing later changes. An enforceable mutual wills agreement involves separate legal requirements.
A promise by the partner also does not extend the deadline to claim against your parent’s estate. Before agreeing to wait, obtain advice about the documents and whether the proposed arrangement gives you enforceable protection.
What if the will leaves me something only after the partner dies?
A gift after a partner’s life interest is different from an outright gift to the partner followed by an informal promise to you. The will may preserve a future interest for you, but its terms need careful examination.
Relevant questions include whether capital can be spent, who controls the assets, whether property can be sold and when you can receive a benefit.
A future entitlement does not necessarily address present financial needs. Whether it amounts to adequate provision depends on its value, terms and your circumstances. We can assess both the existing benefit and whether further provision should be sought.
What if the home passes directly to the partner?
A home owned as joint tenants will ordinarily pass to the surviving joint owner by survivorship, rather than through the will. By contrast, the deceased’s share in property held as tenants in common generally forms part of their estate.
It is therefore important to investigate ownership instead of assuming that everything your parent used or described as theirs is an estate asset. Superannuation may also be paid outside the estate.
NSW’s notional estate provisions in Part 3.3 of the Succession Act 2006 (NSW) can sometimes make property outside the estate available for family provision. These provisions have specific requirements and do not automatically bring every joint asset, gift or superannuation benefit into the claim.
Do I have to prove the partner pressured my parent?
No. A family provision claim concerns adequate provision. It does not require you to establish wrongdoing by the surviving partner.
A challenge based on undue influence, lack of testamentary capacity or lack of knowledge and approval is a different type of case. A changed will, family disagreement or an unexpected result does not, by itself, prove invalidity.
If there are genuine concerns about how the will was made, we can assess those separately and advise whether one or both types of proceedings should be considered.
What should I do now?
Obtain the will and seek advice promptly
A child is among the people entitled to inspect or obtain a copy of a deceased parent’s will under section 54 of the Succession Act 2006 (NSW). You do not need to be named as a beneficiary to fall within that category.
Provide us with the will if available, the date of death, the executor’s details and what you know about the assets. You can seek advice even if some information is still missing.
Protect the estate from premature distribution
An early step is to write to the executor or their solicitor, give notice of the proposed claim and seek an undertaking not to distribute the estate while it is addressed. If protection cannot be agreed, urgent Court relief may require consideration.
A probate caveat is not the appropriate way to protect a family provision claim alone. It should only be considered where there are separate, proper grounds concerning the grant of probate.
Prepare evidence of your circumstances
Gather financial records, details of assets and debts, living expenses and evidence of health or housing needs. Prepare a chronology of your relationship with your parent, including support, contributions and any periods of estrangement.
Retain messages, letters and documents about promises or changes to estate arrangements. Clear evidence will help us assess the strengths, weaknesses and likely costs of proceeding.
How long do I have to contest the will?
Under section 58(2) of the Succession Act 2006 (NSW), a family provision application generally must be filed within 12 months of death.
The deadline runs from death, not from probate, receipt of the will or the end of negotiations. Giving notice to the executor does not stop the clock.
A late application may be possible with the parties’ consent or the Court’s permission on sufficient cause being shown. You should obtain advice immediately rather than assume an extension will be granted.
Can the claim resolve without a final hearing?
Yes. Family provision proceedings are generally referred to mediation, where parties can negotiate a settlement. The terms can address the amount and timing of provision and legal costs.
Court-annexed mediation has no mediator or venue fee, although legal preparation and representation still involve costs. Private mediation is another option. A realistic assessment of the evidence and competing needs helps guide negotiations.
How can PB Ritz Lawyers help?
Our practice focuses on wills and estates, including family provision claims and contested estates. We act for applicants and defendants, giving us experience assessing both a child’s claim and the competing position of a surviving partner.
We can investigate the estate, assess your financial needs, identify the evidence required and advise whether a claim is commercially worthwhile. We pursue negotiated outcomes where possible and prepare matters for Court where necessary.
For approved family provision claims, we offer No Win, No Fee arrangements, subject to our assessment and costs agreement. We finance disbursements, with no repayment if the claim is unsuccessful under the agreed arrangement, and can engage leading counsel on a No Win, No Fee basis.
Left out after your parent’s new relationship?
You do not have to decide alone whether the will can be contested, and you should not rely on an informal assurance that you will receive something later.
Contact PB Ritz Lawyers to discuss your parent’s estate, your circumstances and whether your matter qualifies for a No Win, No Fee arrangement. Early advice gives you time to make an informed decision and protect your ability to claim.
