A family provision claim is the legal mechanism available in NSW when someone has not received adequate provision in a will. Governed by the Succession Act 2006 (NSW), this remedy allows eligible people to ask the Supreme Court of NSW to redistribute estate assets based on financial need. Receiving not enough in a will NSW does not automatically give you rights. You must meet strict eligibility criteria and act within tight time limits. This guide explains who qualifies, what the process involves, and how courts decide these claims.
Who can claim inadequate provision in a NSW will?
Eligibility is restricted under Section 57 of the Succession Act 2006 to specific categories of people. The categories include:
- Spouses and de facto partners of the deceased
- Children, including adopted children
- Former spouses who were receiving maintenance from the deceased
- Grandchildren who were financially dependent on the deceased
- Household members who were financially dependent on the deceased at the time of death
Being left out of a will in NSW does not automatically give you a claim. You must also demonstrate that the deceased had a “moral duty” to provide for you, and that the will failed to meet that duty. Courts look at the nature of your relationship with the deceased, your financial circumstances, and the size of the estate.
Step-children are a common grey area. A step-child who lived with the deceased and was financially supported by them may qualify as a dependent household member, even without a formal adoption. The key is proving genuine financial dependency, not just a family connection.
Pro Tip: If you are unsure whether you fall within an eligible category, review the family provision claims eligibility criteria before assuming you have no options. Eligibility is more nuanced than most people expect.
Family provision claims vs will validity challenges: what is the difference?
Family provision claims are distinct from challenges to a will’s validity. Many people confuse the two, but they have entirely different objectives, evidence requirements, and legal processes.
A family provision claim accepts the will as valid. It asks the court to adjust the distribution of the estate because the provision made for you was inadequate. The focus is on your financial need and your relationship with the deceased.
A validity challenge argues the will should not stand at all. Grounds include lack of testamentary capacity, undue influence, fraud, or forgery. If successful, the estate is distributed under an earlier will or the rules of intestacy. The evidence required is far more complex, often involving medical records, witness testimony, and expert opinion.
| Feature | Family Provision Claim | Will Validity Challenge |
|---|---|---|
| Accepts the will as valid | Yes | No |
| Legal objective | Redistribute assets | Invalidate the will |
| Key evidence | Financial need, relationship | Capacity, influence, fraud |
| Typical court | Supreme Court of NSW | Supreme Court of NSW |
| Outcome if successful | Increased provision | Will set aside |
Clarifying early which type of claim applies to your situation is the single most important step you can take. Pursuing the wrong claim wastes time, money, and goodwill within the family.
Pro Tip: A letters of wishes document from the deceased can sometimes provide context about their testamentary intentions, which may be relevant to both types of claims.
How to make a family provision claim in NSW
The process for making a family provision claim follows a defined sequence. Missing any step, particularly the time limit, can end your claim before it begins.
- Confirm eligibility. Verify you fall within one of the categories under Section 57 of the Succession Act 2006 and that you have grounds to argue inadequate provision.
- Act within 12 months. A family provision claim must be commenced within 12 months from the date of the deceased’s death. This deadline is strict. Courts can grant extensions, but you must provide compelling reasons for the delay.
- Gather evidence. Collect documents that demonstrate your financial position, your relationship with the deceased, and any prior financial support you received. Bank statements, correspondence, and statutory declarations from witnesses all strengthen a claim.
- Lodge an application in the Supreme Court of NSW. An application to contest a will due to insufficient provision involves filing in the Supreme Court and may require mediation before the matter proceeds to trial.
- Attend mediation. Most family provision matters are resolved at mediation without a full hearing. Mediation is faster, cheaper, and less adversarial than a contested trial.
- Proceed to hearing if unresolved. If mediation fails, the matter is listed for hearing before a judge, who will consider all evidence and make a final order.
Late applications are possible but not guaranteed. Courts consider why the delay occurred, whether the estate has already been distributed, and whether other beneficiaries would be prejudiced. The stronger your reason for delay, the better your prospects.
Legal costs and proportionality are a real consideration in every claim. If the estate is small and legal fees are high, pursuing a claim may cost more than you recover. A solicitor can help you assess whether the numbers make sense before you commit.
How do NSW courts decide family provision claims?
The NSW Supreme Court considers a range of factors when deciding whether to make a family provision order. The court balances multiple considerations with a focus on financial need, not on equal division or perceived fairness.
Key factors the court weighs include:
- The nature and duration of your relationship with the deceased
- Your current financial position, including assets, income, and liabilities
- The size and nature of the estate
- The financial circumstances of other beneficiaries and competing claimants
- Any contributions you made to the deceased’s welfare or property
- Whether the deceased had expressed reasons for limiting your provision
The 2024 NSW case Dimos v Burndred illustrates the court’s approach clearly. The court confirmed that being eligible is necessary but not sufficient. A claimant who is financially independent and has no demonstrable need is unlikely to succeed, even if they are a close family member. Need drives outcomes, not entitlement.
Claims fail most often when claimants cannot demonstrate genuine financial need, when the relationship with the deceased was distant or estranged, or when the estate is too small to support additional provision without harming other beneficiaries. Understanding this before you file saves significant time and expense.
Common mistakes that derail family provision claims
Inheritance disputes in NSW fail for predictable reasons. Avoiding these mistakes gives your claim a far stronger foundation.
- Confusing claim types. Pursuing a validity challenge when you need a family provision claim, or vice versa, wastes time and money. Get clarity on this first.
- Missing the 12-month deadline. The time limit is the most common and most damaging mistake. Once the deadline passes, you are relying on the court’s discretion to hear your claim at all.
- Failing to establish eligibility. Assuming you qualify without checking the Section 57 categories is a costly error. Not every family member has standing to claim.
- Providing insufficient evidence. Vague assertions about need or relationship are not enough. Courts require specific, documented evidence of your financial position and your connection to the deceased.
- Ignoring settlement options. Many claimants hold out for a court hearing when a negotiated settlement would deliver a better outcome faster and at lower cost. Mediation resolves the majority of family provision matters in NSW.
Pro Tip: Seek legal advice as soon as you believe there may be insufficient provision in a will. Early advice protects your deadline and helps you build a stronger evidentiary foundation from the start.
Funding your legal matter — no win, no fee
Simons George Legal offers No Win, No Fee arrangements for eligible family provision claims. This removes the upfront cost barrier that stops many people from pursuing a legitimate claim. Eligibility is assessed during a free initial consultation, where the firm reviews your circumstances and advises whether your matter qualifies.
No Win, No Fee means you do not pay legal fees unless your claim succeeds. For people facing will distribution issues in NSW, this arrangement makes professional legal representation accessible regardless of your current financial position.
If you believe you have received not enough in a will, book a free case assessment with Simons George Legal to understand your options without any financial commitment.
No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.
Key takeaways
A family provision claim under the Succession Act 2006 (NSW) is the correct legal remedy when a will fails to make adequate provision, and success depends on proving both eligibility and genuine financial need.
| Point | Details |
|---|---|
| Eligibility is restricted | Only specific categories under Section 57 qualify, including spouses, children, and financial dependants. |
| Two distinct legal actions exist | Family provision claims and will validity challenges have different objectives, evidence, and outcomes. |
| The 12-month deadline is critical | Claims must be filed within 12 months of death; late applications require court approval and strong justification. |
| Need drives court decisions | Financial independence can defeat a claim even for eligible claimants, as confirmed in Dimos v Burndred. |
| Early legal advice protects your position | Acting promptly preserves your deadline and strengthens the evidence you can gather. |
What i have learned from family provision disputes in NSW
The most damaging pattern I see in these matters is delay. People spend months processing grief, managing family tension, and hoping the situation resolves itself. By the time they seek legal advice, they are sometimes weeks away from the 12-month deadline, or worse, past it. The legal merits of a claim mean very little if the court will not hear it.
The second pattern is emotional reasoning. People come in convinced they deserve more because of what they contributed to the family or what the deceased promised them. Courts do not decide on promises or perceived fairness. They decide on documented financial need and the nature of the relationship. The claimants who succeed are the ones who can show, with evidence, that they genuinely cannot meet their reasonable living needs without additional provision from the estate.
I also think the distinction between a family provision claim and a validity challenge is underappreciated. Choosing the wrong path early can cost tens of thousands of dollars and months of stress. A 30-minute conversation with a solicitor at the outset can clarify which action applies and what evidence you actually need. That conversation is almost always worth having before you do anything else.
Family provision matters are also deeply personal. They sit at the intersection of grief, money, and family relationships. The families who navigate them best are the ones who keep communication open and treat the legal process as a practical problem to solve, not a battle to win. That mindset leads to better outcomes, faster resolutions, and less lasting damage to the relationships that survive the estate.
— George
Speak to simons george legal about your claim
Simons George Legal is a Bondi-based wills and estates practice with deep experience in inheritance disputes and family provision claims across Sydney. If you believe a will has not made adequate provision for you, the firm offers clear, direct advice on your rights and a practical strategy tailored to your circumstances.
From the initial assessment through to mediation or estate litigation, Simons George Legal keeps costs proportionate and clients informed at every stage. New clients receive a complimentary 30-minute consultation to assess their situation and identify the right next steps. Contact Simons George Legal today to discuss your matter with a solicitor who specialises in contested estates.
FAQ
What does “not enough in a will NSW” mean legally?
It refers to situations where a person has received inadequate financial provision from a deceased’s estate. The formal legal remedy is a family provision claim under the Succession Act 2006 (NSW).
Who is eligible to make a family provision claim in NSW?
Eligible persons include spouses, de facto partners, children, former spouses receiving maintenance, and financially dependent grandchildren or household members under Section 57 of the Succession Act 2006.
How long do i have to contest a will in NSW?
You have 12 months from the date of death to commence a family provision claim. Courts may grant extensions, but you must provide strong justification for any delay.
Can i be left out of a will entirely and still make a claim?
Yes. Being left out of a will does not prevent a claim if you are an eligible person under Section 57 and can demonstrate the deceased had a moral duty to provide for you.
What is the difference between contesting and challenging a will in NSW?
Contesting a will typically refers to a family provision claim seeking more from the estate. Challenging a will targets its validity on grounds such as lack of capacity or undue influence. These are separate legal actions with different evidence requirements and outcomes.