Australia: Family provision claims in NSW – An overview

Last Updated: 21 October 2017
Article by James Hall (formerly with Carroll & O'Dea)

When someone close to you passes away leaving a will, you would assume that it is an indisputable document that sets out how their estate must be distributed, right?


What many people do not know is if that if you feel that you have been unfairly left out of a will or unfairly provided for in a will there is a way to challenge that will through the Courts.

These types of claims are known as 'family provision' claims and are becoming increasing popular in the current age of longer life expectancy, divorce, multiple partners, step children and blended families.

What is a family provision claim?

In simple terms, a family provision claim is where one party makes an application to the Court for a portion or larger portion of a deceased person's estate.

In order to make a family provision claim you must:

  1. Be an 'eligible person' in the eyes of the Court;
  2. Have been left out of a will or feel you did not receive your due entitlements in a will; and
  3. Make your claim within 12 months of the date of death of deceased.

Who is eligible to make a family provision claim?

As noted above, a family provision claim can only be made by an eligible person as defined in section 57 of the Succession Act 2006 (NSW).

The following are 'eligible persons':

  1. A wife or husband of the deceased;
  2. A de facto partner of the deceased;
  3. A former wife or husband of the deceased;
  4. A child of the deceased (including adopted and step-children)1;
  5. A dependant (wholly or partly) of the deceased;
  6. A grandchild of the deceased;
  7. A person who was a member of the deceased's household at any time; and
  8. A person with whom the deceased was living in a close personal relationship2 as at the date of death.

It is important to note that where an eligible person is under any legal incapacity, such as a child or someone with a mental illness, an application can be made by a tutor.

What will the court consider?

Section 60 of the Succession Act 2006 (NSW) sets out what the Court will consider before making orders in a Family Provision claim and include:

  • Any family or other relationship between the applicant and the deceased;
  • The nature and extent of any obligations or responsibilities owed by the deceased to the applicant;
  • The nature and extent of the deceased's estate;
  • The financial resources and needs of the applicant;
  • The financial circumstances of any person the applicant is living with;
  • Any physical, intellectual or mental disability of the applicant;
  • The applicant's age;
  • Any contribution by the applicant to the deceased's estate or welfare for which they were not appropriately compensated;
  • Any provision made for the applicant by the deceased;
  • Any evidence of testamentary intentions (i.e. in a will or statement) of the deceased;
  • Whether the applicant was being wholly or partly maintained by the deceased;
  • Liability of any other person to support the applicant;
  • The character and conduct of the applicant;
  • The conduct of any other person;
  • Any relevant Aboriginal or Torres Strait Islander customary law; and
  • Any other matter the Court considers relevant.

How a claim is made

In New South Wales, Family Provision claims are made by filing a summons and a supporting affidavit in the Supreme Court of New South Wales.

It is important to note that it is not required that Probate or Letters of Administration be granted before bringing a family provision claim.

The summons sets out what orders you are seeking be made by the Court. For those left out of a will such an order may be that provision be made out of the estate for the maintenance, education and advancement in life.

The supporting affidavit will cover eligibility to make a claim and will contain sufficient information about the above listed matters to be considered by the Court. There is a preform affidavit on the Supreme Court of New South Wales website which serves as a guide as to what should be included in the supporting affidavit.3 It is helpful to the Court and the claim if annexures are included to substantiate the information contained in the affidavit.

It is also required that the applicant file a Notice of Eligible Persons which identifies those persons who are potential Eligible Persons to make a claim on the Estate and a further affidavit setting out an estimate of the costs and disbursements up to and including mediation.

What to expect

There are no hard and fast rules on how a Family Provision claim will play out or how long they will take.

Much of how these claims will end up is determined by the attitude of the parties, their willingness to negotiate, the makeup of the estate and the availability of evidence.

Applicants have a high rate of success in Family Provision claims and often settle by way of agreement between the parties or at mediation. As legal costs are often paid out of the estate, most are keen to settle to avoid increasing the costs and reducing the value of the estate.

What to do next

If you are an eligible person or if you are unsure if you are an eligible person and want to make a family provision claim, it is important that you obtain legal advice before making such a claim.


1 See s 57(2) of the Succession Act 2006 (NSW).

2 Meaning that the person and the deceased were living together as at the date of death and one or each of whom provides the other with domestic support and personal care.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

James Hall (formerly with Carroll & O'Dea)
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions