A Family Provision Claim is a formal application to the court, arguing that a deceased person’s Will (or the rules of intestacy if there is no Will) has not made adequate provision for your financial wellbeing. If successful, the court can order that a portion of the estate be reallocated to you.

It is not a challenge to the validity of the Will itself. Instead, it is a request for the court to adjust the distribution of assets to ensure your proper maintenance and future needs are met.

Learn more from our Blog: What is a family provision claim?

In New South Wales, the law specifies who is considered an ‘eligible person’ to make a Family Provision Claim. You cannot make a claim unless you fall into one of these legally defined categories. The main groups of eligible persons include:

• The spouse of the deceased at the time of their death.

• The de facto partner of the deceased.

• A child of the deceased.

• A former spouse of the deceased.

• A grandchild who was, at any point, dependent on the deceased.

• A person who was a member of the deceased's household and was wholly or partly dependent on them.

• A person who was living in a "close personal relationship" with the deceased at the time of their death.

In the context of an inheritance dispute, ‘provision’ refers to the financial support and assistance required for a person's proper maintenance, education, and advancement in life. This can include funds for housing, medical expenses, daily living costs, and other essential needs.

It is critical to act quickly. In New South Wales, a Family Provision Claim must be filed with the court within 12 months from the date of the deceased's death.

If you miss this deadline, you must seek special permission from the court to proceed. While extensions can sometimes be granted, you must provide a sufficient reason for the delay. It is always advised to seek legal advice from a will dispute lawyer as soon as possible to ensure you meet all deadlines.

The court's decision is not about being "fair" but about ensuring adequate provision is made for your proper maintenance and future welfare. To determine this, the court will carefully examine a wide range of factors, including:

• Your financial position, including your current and future needs.

• Your age, health, and capacity to earn an income.

• Your character and your conduct towards the deceased.

• The nature of your relationship with the deceased.

• Any financial support the deceased provided to you during their lifetime.

• The extent to which the deceased maintained you before their death.

• The size and nature of the deceased's estate.

• The financial circumstances of any other beneficiaries or eligible persons.

• Any financial or non-financial contributions you made to the deceased's assets or welfare.

While a claim is a court process, most inheritance disputes are resolved without a final court hearing. In New South Wales, it is compulsory for all parties to attend a mediation session before a matter can proceed to trial.

If the parties are willing to negotiate, it is often possible to resolve the dispute through an informal settlement conference or a formal mediation. Over 80% of matters in NSW settle at mediation, avoiding the significant costs and stress of a trial.

There are a number of different strategies available to resolve a wills dispute. If you would like more specific advice on the options which may be available to you, please call us on 1800 571 113.

The legal costs for a Family Provision Claim can vary significantly, depending on the complexity of the case. In a small, straightforward estate, costs may be a few thousand dollars. In a large, multi-million-dollar estate with multiple parties, costs can be much higher.

Call us on 1800 571 113 and we can talk more specifically with you.

In Family Provision Claims, it is common for the legal costs to be paid from the assets of the deceased's estate. This is especially true if the court finds that you had a justified reason for making the claim and you achieve a successful outcome.

However, if a claim is considered unsuccessful or unreasonable, the court may order you to pay your own costs and potentially those of the estate. The court has a broad discretion to make whatever costs order it deems appropriate. For small estates (under $500,000 in NSW), the court may cap the costs that can be recovered.

Dormer Stanhope Lawyers offer ‘No Win, No Fee’ arrangements, which can provide financial security by ensuring you do not pay legal fees unless your case is successful.

There is no set formula for calculating the amount you might receive. The sum awarded by the court, if any, depends entirely on the specific circumstances of your case. The court’s role is to order a provision that is adequate for your needs, not to simply equalise the distribution among beneficiaries. An experienced will dispute lawyer can offer guidance on what you might reasonably expect based on the specifics of your situation and outcomes in similar cases.

These terms are not strictly defined and are interpreted by the court based on the facts of each case.

• Maintenance refers to an applicant’s ongoing needs for housing, bills, medical care, and other living expenses that cannot be met from their own resources.

• Education can cover necessary schooling and, where appropriate, further tertiary or vocational training.

• Advancement in life is a broader term that can provide a capital sum to establish a person in life, such as helping them buy a home or clear significant debts.

The process begins by filing a Summons and a supporting affidavit with the Supreme Court. The affidavit is your sworn statement outlining the facts of your claim. These documents are then formally served on the executor of the estate.

Shortly after filing, the court will schedule a 'directions hearing' to set a timetable for the case. A key step in this timetable is mediation, which is compulsory and helps resolve most disputes without a full court hearing.

The timeframe depends on the complexity of the case. In NSW, where early mediation is mandatory, many claims are settled within six months. If the parties cannot agree and the matter proceeds to a final hearing, it can take 18 months to two years to get a resolution.

Yes. If you are a beneficiary but believe the provision made for you in the Will is inadequate for your needs, you are entitled to make a claim for further provision from the estate.

Yes, an adult child is an eligible person to make a Family Provision Claim. A successful claim will generally depend on the child demonstrating a significant financial need, especially when compared to other beneficiaries, or having a disability or ill health that affects their ability to provide for themselves.

Learn more: Left out of your parent's will or inadequately provided for?

Yes, a stepchild is an eligible person but must typically show they were dependent on the deceased at some point and were a member of their household. The court will also consider whether the deceased had a moral duty to provide for them.

Learn more: Can I make a claim as an adopted or step child?

Yes, but special requirements apply. A grandchild must generally prove that they were at some point wholly or partly dependent on the deceased. The court will also need to be satisfied that there were factors creating a moral obligation for the grandparent to provide for them in their Will.

Learn more: Successfully contesting a grandparent’s will

It is possible, but extremely difficult. To make a claim after the 12-month time limit in NSW has expired, you must get special approval from the court. You would need to provide a very good explanation for the delay. If the estate has already been fully distributed, your chances of success are significantly reduced.

Yes, you can. In fact, most Family Provision Claims are started after the executor has obtained a Grant of Probate or while they are in the process of applying for it. You do not need to wait for probate to be granted before seeking legal advice, but the grant does not stop you from making a claim, provided you are within the 12-month time limit in NSW.

If you filed your claim within the time limit and the executor was notified, you can still proceed. The court can order beneficiaries to return assets to the estate. It is highly risky for an executor to distribute an estate when they are on notice of a potential claim. If you file out of time and the estate has been distributed, it is very difficult to recover the assets.

No. You do not need to live in New South Wales to make a claim here. The most important factor is that the deceased person owned assets in NSW. If there are assets located in this state, the NSW Supreme Court generally has jurisdiction to hear the claim, regardless of where you currently live.

Yes. If a person dies without a valid Will, they are said to have died ‘intestate’. Their estate is then distributed according to a set formula under the law, known as the rules of intestacy.

If you are an eligible person and believe the share you are entitled to receive under these rules is inadequate for your financial needs, you can still make a Family Provision Claim against the estate. The process is the same as if you were contesting a Will.

If you believe the deceased had dementia when they made their Will, the issue is usually about the validity of the Will itself, rather than a Family Provision Claim.

If the deceased did not have the mental capacity to understand what they were doing, the Will may be invalid. In this case, you would challenge the Will in probate court. If the Will is set aside, a previous valid Will (or the intestacy rules) would apply. You should seek specific legal advice to determine which type of claim is right for your situation.

Generally, a Family Provision Claim can only access the assets that were owned by the deceased person at the date of their death. This is called the 'actual estate'.

However, many people are surprised to learn that certain assets often fall outside the estate. For example:

• Superannuation: This is usually held by a trustee and distributed according to the fund's rules, not the Will.

• Jointly Owned Property: If a house is owned as 'joint tenants' with another person, the ownership automatically passes to the surviving owner when one person dies. It does not become part of the estate.

However, it is different in NSW. In this State, the law has a concept of “notional estate.” Notional estate may permit in certain limited circumstances for certain property to be “clawed back” into the deceased’s estate.

New South Wales has a unique law called 'Notional Estate' that is different from other states. It allows the court, in specific circumstances, to 'claw back' assets that would normally fall outside the estate.

This means that if the assets directly owned by the deceased (the actual estate) are not enough to provide for a successful claim, the court can look at other assets. This might include superannuation or property that was transferred shortly before death to avoid a claim. Notional estate laws are complex, designed to ensure fair play, and prevent people from hiding assets to defeat a claim.

Learn more from our Blog: Notional Estates

If you would like more specific advice on notional estate, please get in touch with us on 1800 571 113.

No. Sometimes a Will-maker leaves a small token gift or a minor sum of money to a family member, thinking this will prevent them from contesting the Will. This is a common myth.

Leaving a small gift does not stop you from bringing a Family Provision Claim if that gift is inadequate for your proper maintenance and support. The court looks at your actual financial needs, not just whether you received something small.

If your Family Provision Claim is successful, the general rule is that your legal costs will be paid out of the deceased estate. This ensures that the cost of seeking justice does not eat up the provision you have been awarded. However, the court always has discretion, so it is important to discuss costs clearly with your lawyer.

If your claim goes all the way to a final court hearing and is unsuccessful, you will usually have to pay your own legal costs. In some cases, the court may also order you to pay the legal costs of the estate.

This is why many lawyers, including our team, work hard to assess the strength of your case early on. We offer a 'No Win, No Fee' arrangement for eligible claims, which can protect you from these financial risks.

Yes. The vast majority of Family Provision Claims in NSW—around 80%—are settled without ever going to a final trial before a judge.

Most cases are resolved at mediation. Mediation is a compulsory step in NSW where all parties meet to negotiate a fair agreement. This process saves everyone significant stress, time, and money compared to a full court battle.

Yes. When determining a Family Provision Claim, the court is required to consider the needs of all beneficiaries, particularly those who may be vulnerable. This includes beneficiaries with a disability or those who, due to age or circumstance, are unable to support themselves financially. The court balances the needs of the person making the claim against the needs of other beneficiaries who also require protection.

While it's not always possible to guarantee that someone won't make a Family Provision Claim, there are steps you can take to reduce the likelihood. Careful estate planning is essential. You should:

• Seek advice from a specialist estate lawyer, who can review your family and financial circumstances.

• Clearly communicate your intentions and reasons for your decisions in your Will, especially if you plan to leave someone out or provide unevenly.

• Consider providing written statements (such as a statement of wishes) to explain your choices to the court, if necessary.

• Update your Will regularly, especially after significant life changes.

• A lawyer can also identify individuals who may be eligible to claim against your estate and advise you on strategies to address potential risks, helping to protect your wishes as much as possible.

Give us a call today to begin your estate planning.