What is a Family Provision Claim in NSW?

What is a Family Provision Claim in NSW?

In the legal landscape of New South Wales, the distribution of a deceased person’s estate is governed by the principle of testamentary freedom, that being, the right of an individual to choose exactly how their assets are distributed. However, this freedom is not absolute. Under Chapter 3 of the Succession Act 2006 (NSW), the Supreme Court has the power to intervene through what is known as a Family Provision Claim.

It is a common misconception among the public that these claims are about "fairness" or "equality." From a strictly legal perspective in NSW, the jurisdiction of the Court is not to rewrite a Will to make it "fair" or to ensure all children receive an equal share. Instead, the Court’s role is to determine whether adequate provision has been made for the proper maintenance, education, or advancement in life of an eligible person.

This guide provides an in-depth analysis of the statutory framework, eligibility criteria, and unique procedural nuances of Family Provision Claims in New South Wales as of 2025.

1. The Statutory Framework: The Succession Act 2006 (NSW)

The Succession Act 2006 is the primary piece of legislation governing estates in NSW. Specifically, Part 3.2 of the Act outlines the Court’s power to make a "Family Provision Order."

A Family Provision Order is an order made by the Court that alters the distribution of the estate of a deceased person, regardless of whether that person died leaving a Will (testate) or without a Will (intestate).  If the deceased died leaving a Will the Family Provision Order is treated as a codicil to the Will.

The Rejection of the "Fairness" Standard

The NSW Supreme Court has repeatedly clarified that its role is not to achieve an "equitable" outcome in a social sense. In the landmark case of Pontifical Society for the Propagation of the Faith v Scales, the High Court emphasized that the Court should not interfere with a testator’s Will merely because it seems "hard" or "unfair”.

The Court’s jurisdiction is purely protective. It seeks to rectify a failure by the deceased to meet a "moral duty" to provide for those to whom they had a responsibility. If an applicant has sufficient means for their own proper maintenance, even a Will that appears "unfair" (such as leaving a large estate entirely to charity while excluding a wealthy child) may be upheld by the Court.

2. Who Has Standing? Eligibility Under Section 57

In New South Wales, only an "eligible person" can bring a claim. Eligibility is strictly defined under Section 57 of the Act.

Automatic Eligibility

The law recognises certain relationships as inherently involving a moral duty of support:

• The Spouse: Legally married to the deceased at the time of death.
• De Facto Partner: A person who was in a de facto relationship with the deceased (including same-sex partners).
• Children: Including biological and legally adopted.

Eligibility Requiring "Factors Warranting"

Other categories of people may apply, but they must first satisfy the Court that there are "factors warranting" the making of the claim:

• Former Spouses: Divorced partners who may still have a financial dependency or where there was no property settlement.
• Grandchildren: Only if they were "wholly or partly dependent" on the deceased at a particular time.
• Members of the Household: Individuals who lived with the deceased and were dependent on them.
• Close Personal Relationship: Two people living together, one of whom provided domestic support and personal care to the other (without being a paid professional).

3. The Two-Stage Test for Success

When a claim is brought before the Supreme Court, the Judge applies a rigorous two-stage test.

Stage 1: The Jurisdictional Question

The Court must first decide if the provision made in the Will (or via intestacy) was inadequate. This is a question of fact:

• The applicant’s current financial position.
• Their future needs (medical, housing, and retirement).
• The relationship they had with the deceased.

Stage 2: The Discretionary Question

If the Court finds the provision was inadequate, it then moves to the second stage: determining what amount is proper. The Court has wide discretion here. It must balance the applicant's needs against the "competing claims" of other beneficiaries and the deceased's own wishes as expressed in the Will.

4. The 15 Factors Considered by the Court (Section 60)

Under Section 60(2) of the Succession Act, the Court is provided with a list of 15 factors to determine whether to make an order. These factors form the bulk of the evidence presented in any Family Provision matter:

1. Relationship History: The nature and duration of the relationship.
2. Moral Obligations: Responsibilities the deceased had to the applicant.
3. Estate Size: The value of the assets (including "Notional Estate").
4. Financial Resources: The current and future financial needs of the applicant.
5. Co-habitation Circumstances: The financial circumstances of anyone the applicant lives with.
6. Disability: Any physical, intellectual, or mental disabilities of the applicant or other beneficiaries.
7. Age: The applicant’s age and life stage.
8. Contribution: Financial or non-financial contributions to the deceased’s wealth or welfare.
9. Inter-vivos Provision: Any gifts or support the deceased gave the applicant during their lifetime.
10. Testamentary Intentions: Statements made by the deceased regarding their Will.
11. Maintenance: Whether the deceased was supporting the applicant before death.
12. Liability of Others: Whether anyone else has a legal obligation to support the applicant.
13. Character and Conduct: Whether the applicant was abusive or "disentitling" in their behaviour.
14. Customary Law: Any relevant Aboriginal or Torres Strait Islander customary laws.
15. Other Conduct: Any other matter the Court deems relevant.

5. The NSW "Notional Estate" Advantage

New South Wales is unique in Australia for its Notional estate provisions (Part 3.3). This is a critical area of expertise for NSW law specialists.

In other states, a person can "empty" their estate before death, for example, by putting property into a joint tenancy or making large gifts, to ensure there is nothing left for a claimant to take. In NSW, the Court can "claw back" these assets if the transaction occurred:

• Within 3 years of death with the intent to evade a claim.
• Within 1 year of death when the deceased had a moral obligation to provide for someone.
• On or after the date of death (such as superannuation death benefits).

6. Statutory Time Limits: The Critical 12-Month Rule

In New South Wales, the timeline for filing a Family Provision Claim is strictly governed by Section 58 of the Succession Act. Unlike other legal actions that might allow years of leeway, estate disputes require rapid movement to ensure the orderly administration of assets.

The 12-Month Deadline (Section 58)

An application for a Family Provision Order must be filed in the Supreme Court of NSW within 12 months of the date of the deceased's death.

• Date of Death vs. Date of Probate: It is a common mistake to wait for "Probate" (the Court's recognition of the Will) to be granted before starting a claim. In NSW, the 12-month clock starts at the moment of death, regardless of when—or if—Probate is obtained.
• The Finality Principle: This deadline exists to provide beneficiaries with certainty. Once the period has passed, they should ideally be able to receive their inheritances without the threat of future litigation.

Seeking "Leave" for Late Applications (The Section 58 Test)

If the 12-month window has closed, an applicant must apply for "leave" (permission) from the Court to file out of time. Under Section 58(2), the Court will only grant this if "sufficient cause" is shown.

The Court does not grant extensions lightly. When assessing "sufficient cause," the Judge will consider:

1. The Reason for Delay: Was the applicant unaware of the death? Were they misled by the executor? (Simple ignorance of the law is rarely accepted as a sufficient excuse).
2. Prejudice to the Estate: Has the estate already been distributed to beneficiaries? If the money is gone, the Court is far less likely to grant an extension, as it would "prejudice" those who have already received and perhaps spent their inheritance.
3. Strength of the Claim: The Court will not grant an extension for a claim that is likely to fail on its merits.

The Executor’s Protection: The 6-Month Rule

While the claimant has 12 months to file, the Executor has a different set of rules regarding when they can safely distribute the estate assets.

• Notice of Intended Distribution (Section 93): An executor is generally protected from personal liability if they distribute the estate after 6 months from the date of death, provided they have given proper "Notice of Intended Distribution" and have not received notice of a potential claim.
• The Claimant’s Strategy: To prevent an executor from distributing the estate early, a potential claimant should serve a formal "Notice of Intended Claim" as soon as practicable following the deceased’s death. Once this notice is received, the executor is "on notice". If they proceed to distribute the assets anyway, they may be held personally liable to satisfy any future Court order, meaning they might have to pay the claimant out of their own pocket.

7. Estrangement: Is a Claim Still Possible?

A frequent question in NSW law is whether a child who was "estranged" from their parent for many years can still claim. The answer is often yes.

The Supreme Court of NSW recognises that estrangement is often a "two-way street." If the parent was responsible for the breakdown of the relationship (through neglect or abuse), the Court may find that the parent’s moral duty to provide for their child remains intact. However, if the estrangement was entirely the fault of the child’s "disentitling conduct", the Court may significantly reduce the amount awarded, or make no provision at all.

8. The Procedural Path: Mediation is Mandatory

The NSW Supreme Court (Probate and Family Provision List) is one of the busiest in the country. To manage the caseload and preserve estate assets, the Court requires parties to attend mediation before any trial.

• The Power of Mediation: Approximately 80% of Family Provision Claims in NSW are settled during mediation. This is a confidential process where a mediator helps the parties reach an agreement.
• Cost Efficiency: Mediation avoids the exorbitant costs of a Supreme Court trial, which can easily exceed $100,000 for each side.

9. Legal Costs in Family Provision Claims

The "costs" of these proceedings are a major consideration. While the general rule in litigation is that the "loser pays", Family Provision Claims are different.

• The Estate Usually Pays: Often, the Court will order that the legal costs of both the Executor and a successful claimant be paid out of the estate.
• Personal Cost Orders: If a claimant brings a frivolous claim or rejects a reasonable settlement offer at mediation, the Court in 2025 is increasingly likely to order that the claimant pay their own costs, or even the estate's costs.

10. Conclusion: Why Specialist NSW Advice is Vital

Family Provision Claims in New South Wales involve a complex interplay between the Succession Act, Supreme Court Practice Notes, and the unique concept of Notional Estate. Because the Court does not aim for "fairness" but rather "adequacy", the way your evidence is framed can often be the difference between success and failure. For this reason it is imperative that your legal team have significant experience acting in Family Provision Claims.