Family Provisions Claims

What is a Family Provision Claim?

A Family Provision Claim is a court application that asks the Supreme Court of NSW to alter how a deceased estate is distributed — because the Will (or the intestacy rules) didn't make adequate provision for the applicant's proper maintenance, education or advancement in life. It's the most common type of estate dispute in NSW and is governed by Chapter 3 of the Succession Act 2006 (NSW).

You're not arguing the Will is invalid. You're asking the Court to do what it considers fair, in light of the relationship, the size of the estate and the competing needs of other people.

Who Can Make a Family Provision Claim in NSW?

Under section 57 of the Succession Act 2006 (NSW), an "eligible person" is:

• The spouse of the deceased at the time of death
• A de facto partner living with the deceased at the time of death
• A child of the deceased — including adopted children, and in some cases step-children
• A former spouse of the deceased
• A grandchild who was, at any time, wholly or partly dependent on the deceased
• A member of the household of the deceased who was, at any time, wholly or partly dependent on the deceased
• A person in a close personal relationship with the deceased at the time of death

The last three categories have a higher threshold — you need to show "factors warranting" the Court making an order in your favour. Spouses, de facto partners and children of the deceased don't have to meet this extra test.

What Does the Court Consider?

If you're eligible, the Court then considers a long list of factors under section 60(2) to decide whether you've been adequately provided for, and if not, what order to make. Key factors include:

• The nature and duration of your relationship with the deceased
• The nature and value of the estate
• Your financial resources, needs and earning capacity (now and in the foreseeable future)
• The financial resources and needs of any other beneficiary or claimant
• Your age, physical and mental health
• Contributions you made to the deceased's welfare, property or estate
• Any provision the deceased made for you during their lifetime or under the Will
• The deceased's reasons for making (or not making) provision for you
• Any Aboriginal or Torres Strait Islander customary laws relevant to the deceased

The Court has wide discretion. Two claims that look similar on paper can produce very different outcomes depending on the strength of the evidence and the competing interests at stake.

Notional Estate — A NSW-Specific Tool

NSW is unusual: even assets the deceased gave away or arranged to pass outside the Will (for example, jointly-held property, super-fund death benefits or recent gifts) can be "designated notional estate" and clawed back to fund a Family Provision order under Part 3.3 of the Succession Act. That means estates that appear to have been deliberately stripped before death may still have assets available for a claim. This is one of the most important — and most underused — features of NSW estate law.

No Win, No Fee — Available for Eligible Matters

For eligible Family Provision claims, we offer conditional costs agreements (No Win, No Fee*) — you don't pay our professional fees unless the matter resolves in your favour. We assess every case at no cost during the initial consultation and tell you honestly whether your claim has prospects.

*Conditional costs agreements are offered in accordance with the Legal Profession Uniform Law (NSW). Disbursements and other costs may still be payable. Eligibility is assessed on a case-by-case basis.

If You Are an Executor

If you're an executor facing a Family Provision Application, you have a duty to defend the estate while also acting fairly between competing claimants. The Court generally allows executors to be indemnified out of the estate for the reasonable costs of defending a claim — but you can't simply distribute the estate while a claim is on foot. We act for executors in defending claims, preparing for mediation, and protecting your personal position.

Common Questions About Family Provision Claims

Who can contest a Will in NSW?

Under s57 of the Succession Act 2006 (NSW), eligible persons include the spouse, de facto partner, child, former spouse, dependent grandchild, dependent household member, and a person in a close personal relationship with the deceased at the time of death. The last three categories must also satisfy "factors warranting" before the Court will hear their claim.

What is the time limit to contest a Will in NSW?

You must file a Family Provision Application within 12 months of the date of death (s58 Succession Act). The Court can extend time in limited circumstances, but it's not guaranteed. The earlier you act, the stronger your position.

How much does it cost to make a Family Provision Claim?

For eligible claims, Simons George Legal offers No Win, No Fee* conditional costs agreements — you don't pay our professional fees unless the claim resolves in your favour. Disbursements and other costs may still be payable. We assess every claim at the initial consultation and tell you honestly whether the case has prospects.

How much can I receive from a Family Provision Claim?

There's no fixed formula. The Court considers the size of the estate, your financial needs and resources, the competing claims of other beneficiaries, and many other factors. Orders range from small lump sums up to significant portions of an estate. Honest case assessment at the start of your matter is the best way to set realistic expectations.

Can a stepchild make a Family Provision Claim?

A stepchild is not automatically an eligible person under s57. They may still qualify if they were a member of the deceased's household and wholly or partly dependent on the deceased at some point, or if they were in a close personal relationship with the deceased. Eligibility is assessed case-by-case.

What is "notional estate" in NSW?

Notional estate is a NSW-specific concept that allows the Court to claw back assets the deceased moved out of their estate before death — for example by joint tenancy, super-fund death benefits or substantial gifts — and use those assets to satisfy a Family Provision order. It's governed by Part 3.3 of the Succession Act 2006 (NSW).

Do Family Provision Claims always go to court?

No — the vast majority settle at mediation, typically within 6 to 12 months of filing. The Supreme Court actively encourages mediation in estate matters and most cases never reach a final hearing.