What Happens to a Family Provision Claim When the Applicant Dies Before the Case Is Resolved?

Why This Question Arises

Family provision proceedings in the Supreme Court of NSW are not resolved quickly. A contested claim can take one to two years from the filing of a summons to the final hearing. 

Mediation is compulsory under Practice Note SC Eq 7 before a hearing date is allocated, and many claims involve multiple rounds of evidence and negotiation. During that time, applicants who are elderly or unwell may die before a resolution is achieved.

What happens next depends on the stage the proceedings had reached and whether a settlement was formalised before the death.

The Personal Nature of a Family Provision Claim

A family provision order is made under section 59 of the Succession Act 2006 (NSW) in favour of a living eligible person for their proper maintenance, education, or advancement in life. Under section 59(1)(c), the Court must be satisfied that, at the time it considers the application, adequate provision has not been made for the person in whose favour the order is to be made.

If the applicant has died, they are no longer a person who requires provision for their future needs. The legal basis for the order effectively disappears.

Section 60(2) of the Succession Act sets out the factors the Court considers: the applicant’s age, financial circumstances, future needs, health, and earning capacity. When the applicant dies, these factors become largely unassessable.

This is why the prevailing view in NSW succession law is that a family provision claim is a personal right, not a transmissible property right. Unlike a debt or contractual entitlement, it does not automatically pass to the applicant’s estate on death.

Does the Claim Simply Lapse?

Not automatically. The outcome depends on what stage the proceedings had reached at the time of death, with four distinct scenarios carrying different consequences.

Proceedings Not Yet Filed

If the applicant dies before filing a summons, the claim lapses entirely. Under section 58 of the Succession Act, a family provision claim must be commenced by the applicant while the applicant is alive. 

No one else can commence the claim on their behalf after their death, because eligibility under section 57 is determined by the relationship between the living applicant and the deceased at the time of the deceased’s death. That relationship cannot be revived or assigned.

Proceedings Filed But No Settlement Reached

If the applicant had filed a summons but the proceedings were still pending when they died, the claim may be dismissed. Under rule 6.30 of the Uniform Civil Procedure Rules 2005 (NSW), proceedings do not automatically abate on the death of a party if a cause of action survives. 

However, for that rule to assist the applicant’s estate, the family provision claim itself must constitute a cause of action that survives.

Given the personal character of the claim, courts have generally taken the view that a family provision claim made under the Succession Act 2006 (NSW) does not survive the applicant’s death in the way that a property claim would. 

The reason is that the relief sought is specific to the needs of the living applicant, not a pre-existing debt or property right that can vest in an estate.

Under rule 6.31 of the Uniform Civil Procedure Rules 2005 (NSW), if no order is made substituting a replacement party within three months of the party’s death, the Court may dismiss the proceedings. The applicant’s personal representative would face a significant legal hurdle in seeking to continue.

A Settlement Was Reached Before Death

This is the most favourable scenario for the applicant’s estate. If the parties had negotiated a settlement and exchanged binding terms before the applicant died, those terms may form part of the applicant’s estate and be enforceable by the applicant’s personal representative.

For example, if a deed of settlement was executed by all parties but the Court had not yet made final orders, the applicant’s executor or administrator can typically seek to enforce the deed. The position is strongest where the settlement was formalised in writing and signed by all relevant parties.

Consent Orders Were Made Before Death

If the parties had progressed to the stage of consent orders being made by the Court, those orders are final and binding regardless of whether the applicant subsequently dies. 

The provision made by the consent order forms part of the applicant’s estate and passes in accordance with the applicant’s will or, if there is none, under the intestacy.

More: What is a Family Provision Claim in NSW?

The Position of the Applicant’s Personal Representative

When an applicant dies, their executor or administrator should notify the Court and all parties as soon as practicable, then obtain legal advice on whether the claim has any basis to continue.

In most cases, the personal representative will be advised the claim cannot continue, because the Court cannot make a family provision order in favour of a deceased person. If a settlement was substantially concluded but not formalised, options to enforce it may exist.

Doing nothing is not advisable. Under rule 6.31, the Court may dismiss proceedings if substitution is not addressed within three months.

What This Means for Defendants and Beneficiaries

For executors and beneficiaries defending a family provision claim, the death of the applicant does not automatically end the proceedings. The defending estate should notify its lawyers immediately and seek advice on whether the claim can continue.

If the claim was at an early stage and no settlement had been reached, the defending estate may be in a strong position to seek dismissal. If negotiations had progressed and a settlement was close to finalisation, the defending estate should consider whether to formalise any outstanding terms rather than allowing the claim to remain in limbo.

More: How to Make a Family Provision Claim in NSW

Practical Steps to Protect Your Position

The right steps depend on your role. The guidance below covers three positions: the applicant, the defending party, and the applicant’s personal representative.

If you are the applicant and your health is declining:

• Prioritise early resolution. A reasonable settlement is far more certain than waiting for a hearing.
• Work with your lawyer to formalise the settlement terms in writing and have them promptly countersigned.
• Make sure your own estate planning is in order. If you die without a formalised settlement, your estate may receive nothing.

If you are the executor or a beneficiary defending the claim:

• Do not distribute the estate before seeking advice on whether the claim can continue after the applicant’s death.
• If the applicant dies and no settlement was reached, consider applying for directions or dismissal.

If you are the applicant’s personal representative:

• Act promptly. The three-month window under rule 6.31 runs from the date of death.
• Obtain legal advice immediately on whether the claim has any basis to continue.
• If a settlement was in place, take steps to enforce it through the Court or by correspondence with the other parties.

The Importance of Acting Early

Family provision proceedings can move slowly, and many applicants are elderly or unwell. An applicant who does not live to see the final resolution of a legitimate claim may leave their estate with nothing.

The strongest protection is early resolution. Most family provision matters in NSW are referred to mediation under Practice Note SC Eq 7, and the majority resolve at or before that stage. Accepting a reasonable offer at mediation is almost always preferable to a lengthy hearing, particularly where the applicant’s health is a concern.

Early legal advice protects both your position and that of your estate.

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Speak With a Wills and Estate Lawyer

If you are involved in a family provision claim and the applicant’s health is declining, time is of the essence. Call 1300 414 844 to speak with a wills and estate lawyer. Empower Wills and Estate Lawyers offers payment plans, pensioner discounts, sliding fee scales, and no-win, no-fee arrangements in eligible cases. Disbursements and barrister’s fees remain payable regardless of outcome.