What Is the Two-Stage Test for Family Provision Claims in NSW?

Where the Two-Stage Test Comes From

The two-stage test was set down by the High Court of Australia in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, delivered on 14 September 1994. The judgment of Mason CJ, Deane and McHugh JJ established that family provision claims must be decided in two parts.

Although Singer v Berghouse considered the now-repealed Family Provision Act 1982 (NSW), the same approach applies to claims under Chapter 3 of the Succession Act 2006 (NSW).

According to the Supreme Court of NSW Annual Reviews, family provision applications consistently make up a substantial portion of the Equity Division’s caseload, which shows how regularly this test is applied. Anyone considering contesting a will in NSW needs to understand both stages before deciding whether to proceed.

More: What is a Family Provision Claim in NSW?

Stage One: Was Adequate Provision Made?

Stage one is the jurisdictional question. The court must decide whether the will or the intestacy rules left the applicant without adequate provision for their proper maintenance, education or advancement in life.

If the court is not satisfied on this point, the claim ends. The question turns on the applicant’s circumstances at the date the court considers the matter.

• The applicant’s financial position. The court examines income, savings, debts, earning capacity and future financial needs. A claimant who is financially secure faces a much harder path than a claimant in genuine financial need.
• The size and nature of the estate. A modest estate may not allow much room for additional provision. A larger estate creates greater scope for orders. The estate’s composition, whether cash, real property, or business interests, also matters.
• The nature of the relationship with the deceased. Spouses, dependent children, and long-term carers typically have a stronger moral claim than estranged or distant relatives.
• What the will or intestacy actually provided. The court compares the applicant’s needs with what they were given. A genuine shortfall is required to clear stage one.
• Competing claims on the estate. The court considers obligations the deceased owed to other eligible persons and beneficiaries.

If you fall within the categories of eligible persons under section 57 but the will already meet your reasonable needs, you have no claim. Eligibility alone is not enough.

Stage Two: What Provision Should the Court Make?

If stage one is satisfied, the court moves to the discretionary question under section 59(2) of the Act: what provision ought now to be made for the applicant’s proper maintenance, education or advancement in life. This is where the court shapes the actual order.

The Court’s Discretion Is Wide

The court is not required to award any particular amount. It can order a lump sum, a life interest in property, a portion of the estate’s residue, or a combination of these. Orders can also affect notional estate, bringing assets that the deceased moved out of their estate before death back within reach of a family provision order.

The Test Looks at What Is Proper

“Proper” maintenance is not the same as “adequate.” An order must meet the applicant’s reasonable needs in light of the size of the estate, the strength of their claim, and competing demands on the estate. Modest estates rarely produce generous orders.

Orders Are Made on Facts Known at Hearing

Under section 59(2), the court has regard to facts known at the date of the order. Circumstances that change between the date of death and the hearing can affect the outcome, including changes to the applicant’s health, income, or family situation.

The 16 Factors the Court Considers Under Section 60(2)

Section 60(2) of the Succession Act 2006 (NSW) lists 16 factors the court may consider when applying the two-stage test. The court is not required to give equal weight to every factor. The relevance of each depends on the facts of the case.

The remaining factors under section 60(2) cover any testamentary statements made by the deceased, the applicant’s age, cohabitation with another person, dependency on the deceased, competing beneficiaries, Aboriginal and Torres Strait Islander customary law where relevant, and any other matter the court considers relevant.

How NSW Courts Have Refined the Two-Stage Test

Recent NSW Court of Appeal decisions have refined how Singer v Berghouse applies in the current statutory context. The two stages remain the framework, but courts now apply them more flexibly.

• Andrew v Andrew (2012) 81 NSWLR 656. Basten JA described the two stages as “convenient steps” rather than strict separate determinations, signalling a more integrated approach.
• Sgro v Thompson [2017] NSWCA 326. The Court of Appeal confirmed that section 59 requires a “multi-faceted evaluative approach” to whether adequate provision was made.
• Phillips v James (2014) 85 NSWLR 619. Beazley P reaffirmed the Singer v Berghouse framework while accepting it must be applied within the language of the current Act.

According to Underwood v Gaudron [2015] NSWCA 269, the test remains substantively the same: the court must still assess inadequate provision first, then decide what should be done.

The High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 also affirmed the Singer v Berghouse approach and recognised the role of community standards in assessing what is “proper” provision.

For claimants and defenders, this means evidence and argument cannot be cleanly separated into “stage one” and “stage two” silos. The same facts often go to both questions.

What Strengthens Your Position at Each Stage

Successful family provision claims share several characteristics. Whether you are bringing or defending a claim, the strength of your evidence on these points often determines the result. Our practice has handled a wide range of these matters across NSW and nationally.

Detailed Evidence of Financial Need

Affidavit evidence should set out the applicant’s full financial position: income, assets, liabilities, expenses, and projected future needs. Vague claims of hardship fail. Specific, documented financial detail succeeds.

Read more about the evidence needed to contest a will and how affidavits are prepared.

Honest Disclosure of the Relationship

The court examines the relationship with the deceased closely. Periods of estrangement, conflict, or absence must be addressed openly. Hiding adverse facts or conduct often destroys credibility at the hearing and weakens both stages of the test.

Awareness of the Estate’s Size and Competing Claims

A reasonable claim acknowledges other eligible persons and the estate’s limits. Overreaching for more than the estate can support, or ignoring competing beneficiaries, can result in lower awards or adverse costs orders.

Realistic Expectations Backed by Precedent

The most useful preparation is reviewing comparable examples of wills that have been contested and understanding what courts have awarded in similar circumstances.

More: 8 Things to Consider When Making a Family Provision Claim in NSW

Get Expert Advice on Your Family Provision Claim

If you believe you have not received adequate provision from a deceased estate, or you are defending a claim against an estate, call Empower Wills and Estate Lawyers on 1300 414 844 for an initial consultation. We offer flexible fee structures including sliding fee scales, payment plans, pensioner discounts, and no-win, no-fee agreements in eligible cases. Clients remain liable for disbursements and barrister’s fees regardless of outcome.

Frequently Asked Questions

What is the difference between the two stages of the test?

Stage one is the jurisdictional question, asking whether the will left the applicant without adequate provision. Stage two is the discretionary question, asking what provision the court should now order. Both must be satisfied before an order is made.

What does “adequate provision” actually mean under the Succession Act 2006 (NSW)?

“Adequate provision” means enough for the applicant’s proper maintenance, education, and advancement in life. It is judged against the applicant’s circumstances, the size of the estate, and the strength of their moral claim. There is no fixed amount.

Who decides if I am an eligible person under section 57?

The Supreme Court of NSW decides eligibility based on section 57 of the Succession Act 2006 (NSW). Eligible persons include spouses, de facto partners, children, former spouses, certain grandchildren, and persons in close personal relationships.

Can I pass stage one but fail stage two?

Yes. The court may find that adequate provision was not made but still decline to order significant provision if the estate is too small, competing claims are stronger, or other factors weigh against the applicant. Both stages must be satisfied for a meaningful order.

How long do I have to file a family provision claim in NSW?

Under section 58 of the Succession Act 2006 (NSW), an application must be filed within 12 months from the date of death. Extensions are possible only on sufficient cause being shown, or with the consent of all parties to the proceedings.

Does the size of the estate affect my chances of success?

Yes. The estate’s size shapes both stages of the test. A small estate may limit provision even where the need is clear. A larger estate creates more room for orders. The court must balance the applicant’s needs against competing claims, consistent with the Supreme Court of NSW Practice Note SC Eq 7 governing probate and family provision matters.