Author: Jack Lindgren
Many people assume that if they make a valid will, their estate will be distributed exactly as written — unless something highly unusual happens. In NSW, however, the law imposes one important limitation on this freedom: a will-maker has a moral duty to make adequate provision for certain people who rely on them for their maintenance, education, or advancement in life.
If that duty is not met, eligible people may be able to challenge the will by making a Family Provision Claim under the Succession Act 2006 (NSW).
What Is a Family Provision Claim?
A family provision claim is a legal application seeking a share — or a larger share — of a deceased person’s estate.
It may be made when:
- The claimant believes they have not been adequately provided for under the will, or
- The deceased died without a will (intestate) and the rules of intestacy do not make adequate provision for them.
Who Can Make a Family Provision Claim in NSW?
The Succession Act 2006 (NSW) sets out specific categories of people eligible to bring a claim, including:
- Spouse or former spouse of the deceased.
- De facto partner of the deceased at the time of death.
- Child of the deceased.
- Person in a close personal relationship with the deceased at the time of death.
- Grandchild who was dependent on the deceased at any time during their life.
- Member of the deceased’s household who was dependent on them at any time during their life.
How the Court Decides on a Family Provision Claim
Under section 60 of the Succession Act, the Supreme Court of NSW will consider up to 15 specific factors — and any other relevant matters — when deciding whether proper and adequate provision has been made.
Some of the most common factors include:
- The financial position of the claimant.
- The size and nature of the deceased’s estate.
- The relationship between the claimant and the deceased.
What Does “Adequate Provision” Mean?
The Court compares the provision made for the claimant with their needs that cannot be met from their own resources.
- Need is relative: For one person, adequate provision may mean ensuring basic living expenses; for another, it may mean enabling career advancement or a higher standard of living.
- The wealth of the estate matters: A wealthy estate may be expected to provide more than just the essentials, whereas a modest estate may not.
- Example: If a person’s career goals or basic living standards are limited by lack of funds, and the estate could have supported them but did not, the Court may find there was a failure to make adequate provision.
Key Takeaways
- A valid will does not always prevent claims — Family Provision law overrides testamentary freedom in some cases.
- Eligibility is strictly defined, but the Court has wide discretion in deciding the outcome.
- “Adequate provision” is assessed case-by-case, based on need, estate size, and the relationship between the deceased and the claimant.
📞 Need help with a Family Provision Claim in NSW?
Intergen’s experienced succession lawyers can guide you through the eligibility rules, court process, and strategies to protect your rights. Contact us for tailored advice.
Disclaimer: This article provides general information only and is not legal advice. You should seek professional advice before acting on any matter discussed.
