You may be able to contest the will in NSW by making a family provision claim. Receiving an inheritance does not automatically prevent you from seeking further provision.
However, an unequal inheritance is not enough on its own. The central question is whether the provision made for you is adequate in your circumstances, taking account of the estate and competing claims.
At PB Ritz Lawyers, we can assess what you have been left, your financial needs and the reasons for the unequal distribution to advise whether you have grounds to claim.
Do parents have to leave their children equal shares?
No. NSW law does not require parents to divide their estate equally between their children. A parent may decide to give different amounts because of financial circumstances, care provided, previous gifts or the nature of their relationships.
The Court does not simply replace an unequal will with the division it considers fairest. Family provision legislation addresses whether an eligible person has been adequately provided for.
Under section 59 of the Succession Act 2006 (NSW), the Court may order provision where an eligible applicant has not received adequate provision for their proper maintenance, education or advancement in life.
Accordingly, a person receiving less than their sibling may have a claim, but the difference between the gifts is only part of the assessment. Even an equal distribution can leave someone inadequately provided for, depending on the circumstances.
Can I claim if I already received an inheritance?
Yes. A family provision application can seek further provision as well as provision where nothing was left.
For example, a cash gift may appear substantial in isolation but still require assessment against housing needs, health expenses, limited earning capacity and the resources available to meet those needs. Conversely, a smaller gift than your sibling’s may still adequately provide for you.
There is no minimum difference between siblings’ inheritances that automatically establishes a claim. Nor is there a formula under which the Court simply increases your gift until it matches your sibling’s.
Before signing a settlement, release or document acknowledging that a payment resolves your rights, obtain advice about its effect. Tell us about any distribution you have already received and provide the accompanying correspondence.
Am I eligible as an adult child?
A child of the deceased is an eligible applicant under section 57(1)(c) of the Succession Act 2006 (NSW). You do not need to have been financially dependent on your parent to qualify under that category.
Being employed, married or a homeowner does not remove eligibility. However, your financial resources and responsibilities remain relevant to whether the claim succeeds.
Here, the claim is against your parent’s estate. It is your relationship with the deceased parent, rather than your status as the other beneficiary’s sibling, that establishes eligibility in this category.
What makes an unequal inheritance worth investigating?
A useful starting point is to identify what the inheritance actually provides for you and what needs remain unmet. The amount your sibling receives does not answer those questions by itself.
Section 60 of the Succession Act 2006 (NSW) sets out matters the Court may consider. These include the following.
Your present and future financial needs
Your income, earning capacity, savings, property, superannuation, debts and living expenses may all be relevant. Age, disability, medical needs and responsibilities to support others can affect the assessment.
Owning a home with a substantial mortgage is different from owning a debt-free home and having significant investments. However, a mortgage or other debt does not automatically mean an estate should pay it off. We need to examine your overall position and the evidence supporting the provision sought.
Your sibling’s circumstances
The Court can consider the resources and needs of beneficiaries, including the sibling whose inheritance would be affected. Their housing, health, dependants and contributions may support the provision made for them.
Your sibling being wealthier than you may be relevant, but it does not automatically establish that you should receive more. Your own claim still needs to satisfy the legal requirements.
The size and composition of the estate
An estate with substantial investments and cash may provide different options from one consisting mainly of an occupied home. Liabilities, administration expenses and competing claims affect what is available.
It is important to obtain reliable estate information. An estimate based only on the apparent value of the family home may overlook debts, ownership arrangements or other assets.
The relationship and earlier provision
The Court may examine your relationship with your parent, contributions you made, financial assistance received during their lifetime and evidence of their intentions. If there was estrangement, its causes and the wider history can matter.
A claim should present the full picture. Omitting earlier gifts, understating income or failing to disclose accounts can undermine both the assessment and your credibility.
My sibling inherited the house and I received cash. Can I claim?
Potentially. The form of the gifts does not determine whether the provision is adequate.
A will may have been prepared when the home and the cash gift had closer values. Property growth, expenditure and changes in the estate can later produce a substantial difference. That difference does not automatically invalidate the will or entitle you to an adjustment.
We can assess the current estate position, the benefit each person receives and your needs. If further provision is justified, the practical options depend on the estate. They may include a payment from available funds or a negotiated arrangement involving the property. A sale is not inevitable, and neither party should assume a particular outcome before the assets and competing interests are examined.
My sibling says they deserve more because they cared for our parent
Care and support can be significant. A sibling may have reduced their working hours, provided accommodation or taken on substantial responsibilities for a parent’s daily welfare. Those circumstances can help explain why the will favoured them.
However, a claim of having “done everything” needs to be considered against the evidence. Relevant details may include the duration and nature of the care, the impact on employment and finances, and any accommodation, payment or other benefits received.
Your own contributions should also be explained. They may include financial help, practical assistance, support from a distance or care during earlier periods. The assessment should reflect what each person actually did.
A family provision claim is not an accounting exercise that assigns an inheritance to each hour of care. Contributions are considered alongside needs, relationships, the estate and other relevant circumstances.
What if my parent gave me money during their lifetime?
Earlier support may be relevant to whether further provision should be made. This could include assistance with a house deposit, paying debts, education expenses or substantial cash gifts.
That does not mean every earlier payment automatically disqualifies you. The amount, timing, purpose and your present circumstances matter. Your parent’s explanation for the unequal will may also require examination.
Provide records of the assistance rather than relying on recollection. If a payment was a loan, the documents and any outstanding repayment obligation may affect both your financial position and the estate.
Likewise, if your sibling received substantial benefits before death, tell us what you know and identify any supporting evidence. Family provision does not automatically equalise all gifts made to children over a lifetime.
What if the will explains why my sibling received more?
A parent may leave a statement explaining the distribution. The Court can consider evidence of their intentions and reasons, but those reasons do not conclusively determine whether adequate provision has been made.
The accuracy of the explanation may matter. For example, a statement that a child has substantial independent wealth may need to be tested against their actual financial circumstances.
Provide any relevant letters, messages and earlier documents to your solicitor. Disagreeing with the reasons is not enough by itself, but reliable evidence may place them in context or demonstrate that a factual assumption was wrong.
Do I need to prove my sibling influenced the will?
No. A family provision claim can proceed even if the will is valid and your parent made it freely.
Allegations of undue influence, lack of testamentary capacity or lack of knowledge and approval concern the will’s validity. They involve different legal requirements. Receiving a larger gift, assisting with appointments or having a close relationship with the deceased does not, by itself, prove wrongdoing.
If you have genuine concerns about how the will was made, we can assess them separately. You should not assume that proving misconduct is necessary before you can seek adequate provision.
Can I claim if my sibling is the executor?
Yes. Your sibling’s appointment as executor does not give them a veto over a family provision claim. The estate’s legal representative ordinarily responds to the proceedings, and affected beneficiaries may also be involved.
Being both an executor and beneficiary is common and does not automatically justify removal. The executor nevertheless has duties in administering the estate, distinct from their personal interest in receiving an inheritance.
We can write to your sibling or their solicitor, seek estate information and request an undertaking not to distribute the estate while the proposed claim is addressed. If protection cannot be agreed, urgent Court relief may need consideration.
A probate caveat is not the appropriate mechanism for a family provision claim alone. Separate grounds concerning the grant of probate require separate advice.
What evidence should I gather?
Start with the will, the date of death, the executor’s details and any information you have about the estate. As a child, you fall within the categories entitled to inspect or obtain a copy of your deceased parent’s will under section 54 of the Succession Act 2006 (NSW).
Gather financial documents showing your income, assets, liabilities and expenses. Include evidence of health issues or care responsibilities affecting your needs and earning capacity.
Prepare a chronology of your relationship with your parent and identify earlier gifts, loans and contributions. Keep messages and correspondence concerning the estate, including requests to accept a payment or sign a release.
You do not need to know everything about your sibling’s finances before seeking advice. We can identify the information needed and the appropriate way to request it.
What is the time limit to contest the will?
A family provision application generally must be filed within 12 months of death under section 58(2) of the Succession Act 2006 (NSW).
The deadline does not run from probate or the date you discover the unequal gifts. Negotiations, family discussions and notice to the executor do not stop the clock.
A late application may be possible with the parties’ consent or the Court’s permission on sufficient cause being shown. Seek advice promptly if the deadline is approaching or has passed. Distribution of the estate can create additional complications, so do not assume it is safe to wait until the end of the 12 months.
Can we resolve the dispute without a final hearing?
Yes. Family provision proceedings are generally referred to mediation, giving the parties an opportunity to negotiate a settlement. The discussion should be informed by the evidence, competing claims and likely costs.
Court-annexed mediation has no mediator or venue fee, although legal preparation and representation still involve costs. Private mediation is another option.
A settlement may provide a practical outcome without requiring a judge to decide the dispute. However, commencing a weak claim merely to pressure a sibling carries costs risks. We can give you a realistic assessment before you decide how to proceed.
How can PB Ritz Lawyers help?
We focus on wills and estates, including family provision claims and estate litigation. We act for applicants and defendants and understand the evidence needed to assess both a claim for further provision and the beneficiary’s competing position.
We can review the will, investigate the estate, assess your financial circumstances and advise whether the potential outcome justifies the costs and risks. Where possible, we seek a negotiated resolution while protecting your ability to pursue the claim.
For approved family provision claims, we offer No Win, No Fee arrangements, subject to assessment and our 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.
Received less than your sibling and unsure where you stand?
You do not need to have been left out completely to seek advice. What matters is whether the provision made for you is adequate in your circumstances.
Contact PB Ritz Lawyers to discuss your inheritance, your financial needs and whether your matter qualifies for a No Win, No Fee arrangement. An early assessment can help you decide whether to pursue a claim before important deadlines pass.
