Will Disputes

Who Can Make a Family Provision Claim in NSW?

Published: 19 November 2025 | Last Updated: 1 December 2025

Share this blog

Table of Contents

What Is a Family Provision Claim?

Who Is Eligible to Make a Family Provision Claim?

What Does the Court Consider?

Time Limit to Make a Family Provision Claim in NSW

Frequently Asked Questions

When someone passes away, their will (or the rules of intestacy if there is no will) determines how their estate is distributed. However, the law in New South Wales recognises that sometimes a will, or the rules of intestacy, do not make adequate provision for certain people who were dependent on or had a close relationship with the deceased. In these cases, a Family Provision Claim can be made pursuant to Chapter 3 of the Succession Act 2006 (NSW).

What Is a Family Provision Claim?

A Family Provision Claim is an application to the Supreme Court of NSW seeking an order for provision (or additional provision) from the deceased’s estate. The purpose is to ensure that eligible persons receive proper maintenance, education, or advancement in life.

When the Supreme Court of NSW makes a Family Provision Order, it doesn’t rewrite the will, but the order operates as if it were a codicil (an amendment to the will). This means:

The original will remains valid, but the court’s order changes how the estate is distributed.

The order is binding and has the same legal force as if the deceased had personally executed a codicil before death.

Who Is Eligible to Make a Family Provision Claim?

Section 57 of the Succession Act 2006 (NSW) sets out who can make a Family Provision Claim. The main categories include:

Spouse: A person legally married to the deceased at the time of death.

De Facto Partner: Including same-sex partners, provided the relationship meets the legal definition.

Children: Biological or adopted children. Stepchildren may qualify in certain circumstances.

Former Spouse: Even if divorced, a former spouse may claim if there was ongoing financial dependence.

Grandchildren: If they were wholly or partly dependent on the deceased.

Other Dependants: Anyone who was dependent on the deceased and lived in the same household.

Close Personal Relationship: Two adults living together who provided each other with domestic support and personal care.

What Does the Court Consider?

Being eligible to make a Family Provision Claim does not guarantee success. The Court looks at factors set out at Section 60 of the Succession Act 2006 (NSW), including:

The nature and length of the relationship with the deceased.

The applicant’s financial needs and resources.

The size and nature of the estate.

Any obligations the deceased had towards the applicant.

Contributions made by the applicant to the estate or welfare of the deceased.

Any provision already made for the applicant during the deceased’s lifetime.

Health and age of the applicant.

Time Limit to Make a Family Provision Claim in NSW

You must file your claim within 12 months from the date of death of the deceased person. This is a statutory requirement pursuant to Section 58 of the Succession Act 2006 (NSW).

The claim is made by filing a summons in the Supreme Court of New South Wales. A filing fee is payable when the summons is filed.

Frequently Asked Questions

How long does a family provision claim take?

A Family Provision Claim in NSW does not have a fixed duration. If the matter settles early through negotiation or mediation, it can take 6 to 12 months from filing. If the case proceeds to a full hearing in the Supreme Court, it can take 18 to 36 months or longer.

Who pays the costs of a family provision claim?

In New South Wales, the costs of a Family Provision Claim are generally decided by the Supreme Court at the end of the case. If the claimant is successful, their legal costs are usually paid from the estate on an ordinary basis (which usually translates to about 70% of total costs), and the executor’s costs are typically covered by the estate on an indemnity basis (which means they are paid in full). If the claimant loses, they may be ordered to pay the executor’s costs, although the court can decide that each party bears their own costs. Courts consider factors such as the outcome, the parties’ conduct, and whether settlement offers were made, so costs can vary significantly depending on the circumstances.

Do you need to wait for probate to be issued before a claim be made?

No. You do not need to wait for probate or letters of administration to be granted. You can file your claim before a grant is issued.

Can an executor make a family provision claim?

If you're named as Executor of in the Will, you can still make a Family Provision Claim against the estate. Ordinarily the co-executor, if there is one, or residue beneficiaries will be named as the defendants in the proceeding to defend the claim.

Do you have any other questions?

Get Help Now

A portrait of PBRitz founder, Phillip Briffa

About our Director, Phillip Briffa

I founded PB Ritz in 2013 with a single objective in mind – to be the go-to law firm in NSW for all things Wills & Estates law.

Fast forward all these years and I am proud to say we have grown to become one of NSW’s leading law firms in this niche area.

Whether you need assistance with obtaining probate and distributing a loved one’s estate, are interested to get your estate planning affairs in order, or require assistance with contesting or challenging a Will – we have the experience and the knowhow to assist.

Contact me now to discuss how we can help you.