Family Provision Claims

A family provision claim is an application to the Supreme Court of NSW for a share or a larger share from the estate of a deceased person.

You can make a family provision claim if you:

• are an 'eligible person', and
• have been left out of a will, or
• did not receive what you thought you were entitled to receive.

A family provision claim must be filed with the court within 12 months of the date of death.

It is not necessary to obtain a grant of Probate or a grant of Letters of Administration before making an application for family provision.

A family provision claim can only be made by an 'eligible person'.

An 'eligible person' includes:

• the wife or husband of the deceased
• a person who was living in a de facto relationship with the deceased (including same sex couples)
• a child of the deceased (including an adopted child)
• a former wife or husband of the deceased
• a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
• a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death. 

If you are unsure if you are an eligible person you should get legal advice from a private lawyer before you make a family provision claim.

Before making an order, the Court will consider the following:

• the relationship between the applicant and the deceased person
• any obligations or responsibilities owed by the deceased person to the applicant
• the value and location of the deceased person's estate
• the financial circumstances of the applicant, including their current and future financial needs
• whether the applicant is financially supported by another person
• whether the applicant has any physical, intellectual or mental disabilities
• the applicant's age
• any contribution made by the applicant to increase the value of the estate
• whether the deceased person has already provided for the applicant during their lifetime or from the estate
• whether the deceased person provided maintenance, support or assistance to the applicant
• whether any other person is responsible to support the applicant
• the applicant's character
• any applicable customary law if the deceased was Aboriginal or Torres Strait Islander
• any other claims on the estate
• any other matter the court may consider as relevant.

Before you think about making a family provision claim, you could try to resolve your dispute through mediation. Mediation is voluntary and is an effective way of resolving disputes without going to court.  

In family provision claim matters, the Court will refer the parties to mediation to allow the parties to reach a settlement. You can save a lot of time, money and stress by trying to settle your dispute through mediation before you make a family provision claim.

Community Justice Centres (CJC) offers free mediation services. For more information, see Community Justice Centres (CJC) website. 

An application for family provision is made in the Equity Division of the Supreme Court.

You will need to file a Summons together with an Affidavit. You will also need to pay a filing fee. 

All family provision applications will be referred to mediation.

If the matter does not settle at mediation, the matter will be listed for final hearing.

You should not make a claim unless you have received legal advice from a private lawyer.

Legal costs don’t always come out from the estate. If your application for a family provision claim is unsuccessful, you may be ordered to pay all of your own legal costs as well as the costs of the defendant. 

It is up to the Court to make a decision about costs orders.