When There’s a Will, There’s a Way: Understanding the Family Provision Claim Process in NSW
- Justeen Dormer
- 2 days ago
- 4 min read
Family Provision Claims
The loss of a family member or loved one is challenging. This can be made more difficult if you find you have been left without adequate financial provision from their estate. Succession law in NSW has allowed eligible individuals to make a claim on a deceased person's estate in these circumstances.
Understanding your rights is a critical first step. It is essential to know that a family provision claim in NSW must be started within 12 months of the person's death. Seeking guidance from experienced Wills Dispute lawyers is strongly recommended for all parties involved in these matters to navigate the process effectively.
What is a Family Provision Claim?
A family provision claim is a legal action taken in the Supreme Court of NSW. It is for eligible individuals who believe they have not received adequate provision from a deceased person's estate for their proper maintenance, education, or advancement in life. The legal basis for these claims is found in Chapter 3 of the Succession Act 2006 (NSW).
This process allows the Court to review the distribution of an estate and, if necessary, order a different distribution to ensure an eligible person is adequately provided for.
Are You Eligible to Make a Family Provision Claim in NSW?
The Succession Act 2006 specifies who is considered an "eligible person" to make a claim. According to section 57 of the Act, the following individuals can apply:
The wife or husband of the deceased at the time of death.
A person who was in a de facto relationship with the deceased at the time of death.
A child of the deceased.
A former wife or husband of the deceased.
A person who was, at any point, wholly or partly dependent on the deceased and is a grandchild of the deceased or was a member of the deceased's household.
A person who was living in a close personal relationship with the deceased at the time of their death.
For some categories, such as a former spouse or a household member, the Court must also be satisfied that there are factors warranting the making of the application.
How Does the Court Decide a Claim?
When determining whether to issue a provision order, the Court will consider a wide range of factors. Section 60 of the Succession Act 2006 lists several matters the Court may take into account, including:
The financial position and needs of the person making the Claim (the plaintiff).
The nature and duration of the relationship between the plaintiff and the deceased.
The size and nature of the deceased's estate.
Any contributions the plaintiff made to the deceased’s property or welfare.
The financial circumstances of any other beneficiaries of the estate.
The character and conduct of the plaintiff.
Each Claim is unique, and the Court assesses all relevant facts and circumstances before making a decision.
The Process for a Family Provision Claim in NSW
The procedure for family provision claims is guided by the Supreme Court to be as just, quick, and cost-effective as possible.
1. Commencing the Claim
The process begins when the plaintiff files a Summons and a supporting affidavit in the Supreme Court of NSW. The affidavit is a sworn statement that outlines the plaintiff's relationship with the deceased, their financial circumstances, and the reasons why they require provision from the estate.
2. Responding to the Claim
The executor or administrator of the estate is responsible for defending the Claim. They must file their own documents in response. Their duty is to uphold the terms of the deceased’s Will or the rules of intestacy, while also considering the possibility of resolving the Claim through negotiation.
3. Alternate Dispute Resolution
Most family provision claims in NSW do not proceed to a final court hearing. The Supreme Court requires parties to attempt to resolve the matter through alternative dispute resolution. This usually involves either a court-annexed mediation or a private mediation session.
Mediation provides a structured, confidential environment where all parties can discuss the issues with a neutral mediator. A majority of cases are successfully settled at this stage, saving time, money, and emotional stress.
4. Final Hearing and Determination
If the Claim cannot be resolved through mediation, it will be listed for a hearing before a Judge of the Supreme Court. During the hearing, the Judge will review all the parties' affidavit evidence. Witnesses may be required to attend Court to be cross-examined on their evidence.
After all evidence and legal submissions have been presented, the Judge will make a final determination. The Judge has the discretion to either dismiss the Claim or make an order for provision if they are satisfied that the eligible person has been left without adequate provision for their proper maintenance, education, or advancement in life. This court process can take 12 months or longer from the date the proceedings are commenced.
How can Dormer Stanhope help?
Navigating succession law in NSW requires expertise and clear direction. The process of making or defending a family provision claim can be complex, and the strict time limits make it essential to act promptly.
Dormer Stanhope's Wills Dispute lawyers are experienced in all aspects of contested estate litigation in New South Wales. We provide authoritative and supportive guidance to help you understand your position and navigate the legal system with confidence.
If you have been left out of a Will or feel you have not been adequately provided for, please get in touch with us for an obligation-free discussion. We are here to help you resolve these matters with clarity and support.
