What Is a Family Provision Claim?

A family provision claim is a legal application made to the Supreme Court of NSW by someone who believes they haven’t been adequately provided for in a deceased person’s will — or under the rules of intestacy if there’s no will at all. Unlike a straightforward will dispute over validity, a family provision claim doesn’t challenge whether the will is legally sound. Instead, it asks the Court to adjust the distribution of the estate so that the person bringing the claim receives a fairer share.

These claims are governed by the Succession Act 2006 (NSW), which sets out exactly who is entitled to apply and what the Court must consider.

Who Can Make a Family Provision Claim in NSW?

Not just anyone can contest a will on these grounds. You must fall within a defined category of “eligible person,” which includes:

The spouse of the deceased at the time of death
A de facto partner
A child of the deceased (including adopted children)
A former spouse
A grandchild who was, at any time, wholly or partly dependent on the deceased
A person who was a member of the deceased’s household and was wholly or partly dependent on them at some point

Being eligible doesn’t guarantee success — the Court still needs to be satisfied that adequate provision hasn’t been made for your proper maintenance, education, or advancement in life.

The 12-Month Time Limit

One of the most important things to understand about family provision claims is the strict time limit. In NSW, you generally have 12 months from the date of death to file a claim with the Supreme Court. Missing this deadline can mean losing the right to claim altogether, although the Court does have limited discretion to grant an extension in certain circumstances — usually only where there’s a sufficient explanation for the delay and no significant prejudice to the estate.

This is why early legal advice matters. The sooner a potential claim is assessed, the more options are available.

What the Court Considers

When deciding a family provision claim, the Court weighs up a wide range of factors, including:

The size and nature of the estate
The relationship between the applicant and the deceased
Any financial or non-financial contributions the applicant made to the deceased’s estate or welfare
The applicant’s financial position, age, and health
Competing claims from other beneficiaries or eligible persons
Any statements the deceased made, verbally or in writing, about their wishes

There’s no fixed formula. Each case turns on its own facts, which is why outcomes can vary significantly even between seemingly similar claims.

Can a Family Provision Claim Be Resolved Without Going to Court?

Many family provision matters settle through negotiation or mediation before reaching a final hearing. This is often faster, less costly, and less emotionally taxing for everyone involved — particularly where family relationships need to continue after the matter is resolved. An experienced wills and estates lawyer can advise on the realistic strength of a claim and help pursue the most efficient path to resolution.

Thinking About Contesting a Will, or Defending an Estate Against a Claim?

Whether you believe you’ve been left out of a will unfairly, or you’re an executor facing a claim against an estate you’re administering, getting advice early makes a real difference to the outcome. Every situation is different, and the 12-month window doesn’t leave much room to wait and see.

Contact Browne Linkenbagh’s wills and estates team for an obligation-free discussion about your circumstances and where you stand. We have offices in Leura and Sydney with expert litigation lawyers.