Making a Family Provision Claim in NSW

A family provision claim refers to contesting the Will of a deceased individual on the grounds that the deceased failed to make proper and adequate provision for someone to whom the person had a moral obligation to provide for. Provided that certain criteria is met, this allows for someone to challenge a Will that they have been left out of, or otherwise received a smaller share than they think they are entitled to.

Each State and Territory have their own laws regarding the eligibility criteria for a family provision claim, and a claim is normally commenced in the jurisdiction where the deceased individual lived at the time of passing. In New South Wales, section 57 of the Succession Act 2006 (NSW) sets out the definition of ‘eligible person’, and this includes: 

1. The spouse at the time of the deceased’s death;

2. The de facto partner at the time of the deceased’s death;

3. A child of the deceased (‘child’ is further defined in subsection 57(2));

4. A former spouse of the deceased;

5. A person who:

   1. Was at any point in time wholly or partially dependent on the deceased, and

   2. Is a grandchild of the deceased, or was otherwise a member of the deceased’s household;

6. A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

In addition to the relationship criteria for eligibility, there is also a limited timeframe within which a family provision claim can be made. In NSW, a family provision claim must be filed within 12 months from the date of death of the deceased (this timeframe varies in each jurisdiction). There are certain circumstances where an application may be filed after the eligibility timeframe has passed which the court will consider as part of an extension of time request.

If you are contemplating a claim for family provision, reach out to our team for a confidential discussion regarding your individual circumstances.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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