A person in NSW is free to leave their estate to anyone they choose. This is referred to as “testamentary freedom.”

This testamentary freedom is subject to the Court’s power to alter the terms of a deceased person’s will when a will is successfully contested through a family provision claim.

An eligible person may bring a family provision claim by filing with the Court an application against the deceased person’s estate for a ‘family provision order’ under section 59 of the Succession Act 2006 (NSW).

This is different to challenging a will, which involves taking issue with the validity of the will itself, or the circumstances surrounding its preparation, rather than its “fairness.”

Who is Eligible to Make a Family Provision Claim in NSW? 

The Succession Act 2006 (NSW) sets out the requirements for obtaining a family provision order in NSW.

The claimant must first satisfy the Court that they are an ‘eligible person’. Only an eligible person can bring a claim and it is a “gateway” provision in that regard.

Close relationships such as a spouse, de facto with whom the deceased was living at the time of their death, and child are eligible persons.

More distant relationships such as a former spouse, a wholly or partly dependent grandchild or member of the deceased’s household, or someone with whom the deceased was living in a close personal relationship at the time of the deceased’s death are required to also satisfy the Court that there are “factors which warrant the making of the application”, that is, factors which give rise to a moral obligation by the deceased in the circumstances.

The claimant must secondly satisfy the Court that adequate provision for their proper maintenance, education, or advancement in life had not been made by the will of the deceased person.

Grounds for Making a Family Provision Claim in NSW

There are many circumstances that may give rise to a family provision claim in NSW.

Claims may be brought by a child, widow, de facto or dependent grandchild who has had their inheritance significantly reduced or disinherited entirely. The motivation behind the disinheritance may be because of an estrangement, separation, remarriage, or familial dispute.

Whilst there are many circumstances which give rise to a family provision claim, the prospects of a claim will depend on the facts and circumstances of the particular case. If you have been disinherited, we recommend you seek advice from an experienced will dispute lawyer.

When assessing a family provision claim, the Court may consider any or all of the 16 factors set out in section 60(2) of the Succession Act 2006 (NSW). Some of those include:

Nature and Duration of the Relationship

The Court may have regard to the nature and duration of the relationship. Generally, the longer and the closer and loving the relationship, the stronger the claim.

Dependency on the Deceased

The Court may have regard to the nature and extent of any obligations or responsibilities owed by the deceased person to the claimant, to any other person in respect of whom an application has been made for a family provision order, or to any beneficiaries of the deceased person’s estate.

The Size and Nature of the Estate

The size and nature of the deceased’s estate is central to a will dispute and the larger the estate the greater scope there is to seek a family provision order.

Generally, the larger the pie – the larger the potential provision.

The Applicant’s Financial Resources and Needs

The Court may have regard to the financial resources and needs of the applicant or of any named beneficiary of the estate.

An applicant with substantial resources of their own may face difficulty in satisfying a Court that the deceased’s will did not make adequate provision for their proper maintenance, education, and advancement in life.

Any Disability of the Applicant

The Court may have regard to any physical, intellectual, or mental disability of the applicant, any other person in respect of whom the application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated.

Any Provision Received by the Applicant

The Court may have regard to any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate.

A claimant who received significantly more from the deceased during the deceased’s lifetime compared to other beneficiaries may have their claim reduced.

The Deceased’s Testamentary Intentions

The court may have regard to the deceased’s testamentary intentions.

Where a person has left only a small gift to a close relative (or child) or have disinherited the beneficiary entirely, they may prepare a document setting out their reasons for doing so. Often the document is stored or kept with the deceased person’s will. The Court may take these documents into consideration when considering the family provision claim. 

The Character and Conduct of the Applicant

The Court may have regard to the applicant’s character and conduct before and after the date of the death of the deceased person.

Any evidence of physical, verbal, psychological or sexual abuse by a claimant against a deceased person may weigh against that person’s claim.

Timeframe for Making a Family Provision Claim in NSW

In NSW, a family provision claim must be commenced within 12 months from the date of the deceased’s death. It is crucial you don’t delay in contacting a will dispute lawyer if you believe you have grounds to contest a will.

Outcomes of a Family Provision Claim in NSW

If a family provision claim is successful, the court has power to effectively change the terms of the deceased’s will and alter the distribution of the estate.

The court will also have power to order that the estate reimburse a successful party for their legal costs in running the proceedings – though there is no guarantee and it will depend on the circumstances.

If a family provision claim is unsuccessful, in addition to paying their own legal costs, the court may order an unsuccessful claimant to pay for one or more of the other party’s costs. As costs orders can be significant it is essential to seek expert advice on the risks of a costs order. You can read more about the cost of contesting a will in NSW here.

The Role of the Court in Family Provision Claims 

Not all family provision claims progress to a final hearing. Most family provision claims can often be resolved through negotiations and mediation, obviating the need for a final court determination.

Mediation can often achieve a faster and cheaper result. Contact Empower Wills and Estate Lawyers today to discuss the potential for resolving a will contest through mediation.

The role of the court during a family provision claim involves case managing the proceedings, promoting an early resolution, and if necessary, to determining the matter while ensuring procedural fairness.

Speaking with an experienced wills and estates lawyer is the first step in helping you navigate the complex process of lodging a family provision claim in NSW.

Need help with making a Family Provisions Claim?

Have you been left out of a will, or been surprised to discover your entitlement is less than you expected? 

If you need assistance with commencing a family provision claim in NSW, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation. 

Want to learn more?

Read more about how to contest a will here.

Read more about examples of contested wills here.

Read more about the evidence you need when contesting a will here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.