NSW law gives certain people the right to apply to the Supreme Court for provision from a deceased person’s estate, even where that person left a valid will. The right is not unlimited, the process is governed by detailed rules, and the outcome is never certain — but the framework is well established.
When a person dies in New South Wales, their estate passes according to their will — or, if they die without one, according to the intestacy rules. But a valid will is not the end of the matter. NSW law provides a mechanism under which certain people who were left without adequate provision can apply to the Supreme Court for an order that provision be made from the estate. The relevant legislation is Chapter 3 of the Succession Act 2006 (NSW), and the claims that arise under it are known as Family Provision claims.
The decision to apply is not one to take without legal advice, and the first weeks after a death are more consequential than most families realise. This article sets out who can make a claim, how the court approaches one, what the notional estate rules mean in practice, and what executors and beneficiaries should do in the immediate aftermath of a death.
Who is an eligible person
Not everyone who is dissatisfied with a will can bring a Family Provision claim. Section 57 of the Succession Act 2006 (NSW) defines who is an eligible person, and the definition is specific.
Eligible persons include the spouse of the deceased at the time of death; a person who was in a de facto relationship with the deceased; a former spouse; a child of the deceased; a grandchild of the deceased who was, at the time of the deceased’s death, either wholly or substantially dependent on the deceased; and a person who was a member of the deceased’s household and who was, at the time of the deceased’s death, wholly or substantially dependent on the deceased.
A person who is not within one of those categories cannot bring a claim, regardless of how close their relationship with the deceased was, or how limited the provision made for them. Adult children who have had no contact with the deceased for years remain eligible. A close friend who cared for the deceased for a decade does not become eligible by virtue of that care alone, unless they also satisfy the household dependency requirement.
The definition of spouse and de facto partner has developed through case law and now includes relationships that would not always have been recognised in an earlier era of the legislation. The starting point is the relationship as it existed at the time of death, not as it was described by the deceased in their will.
The twelve-month time limit
Section 58 of the Succession Act 2006 (NSW) imposes a time limit of twelve months from the date of death. An eligible person must file their application in the NSW Supreme Court within that period. Applications filed out of time require leave of the court, which is not granted as a matter of course. The court considers the reason for the delay, whether the estate has been distributed in the interim, and whether the delay would prejudice the beneficiaries.
Executors and beneficiaries who are aware that a potential claim exists should not distribute the estate during the twelve-month period without taking legal advice. An executor who distributes assets knowing of a potential claim, and the distribution then prevents the claimant from obtaining the provision they would otherwise have received, may have personal liability for the shortfall. The twelve-month period is not a formality to be endured; it is the window during which the estate should generally remain intact.
This does not mean nothing can happen in the twelve months after a death. Estate administration — probate, gathering assets, paying debts, preparing accounts — can proceed. Payment of specific legacies or partial distributions may be appropriate in some circumstances, particularly where there is no reason to believe a claim will be made. But where a claim is foreseeable, the executor’s obligation is to proceed with caution and not to distribute in a way that pre-empts the outcome.
An executor who distributes an estate knowing of a potential Family Provision claim, and thereby prevents the claimant from obtaining provision, may have personal liability for the shortfall.
How the court decides
Section 60 of the Succession Act 2006 (NSW) sets out the factors the court considers in deciding whether to make a Family Provision order and, if so, what provision to make. The list is not exhaustive and not every factor is relevant in every case.
The court considers the nature and extent of the deceased’s relationship with the applicant; the nature and extent of any obligation or responsibility the deceased had toward the applicant; the character and conduct of the applicant before and after the deceased’s death; the size and nature of the estate; the financial circumstances of the applicant and their likely future needs; the extent to which the applicant is dependent on the deceased’s estate; the physical, intellectual, or mental disability of the applicant; and the provision made for the applicant by the deceased during their lifetime.
The court also considers the claims of other eligible persons and the claims of the beneficiaries named in the will. A Family Provision order is not made in isolation; it is made in the context of all the competing claims on the estate. A large order in favour of one applicant may reduce what other beneficiaries receive. Where the applicant has independent means, the court will take that into account.
The standard against which the court measures the existing provision is not what is generous or what the applicant would prefer. It is whether the provision made is adequate for the applicant’s proper maintenance, education, and advancement in life, having regard to all the circumstances. That formulation has been examined in thousands of decided cases and has produced a body of case law that experienced practitioners use to assess the likely range of outcomes in any particular matter.
Notional estate
One of the most significant features of the NSW Family Provision regime, and one that is not fully understood by most people who encounter it, is the notional estate provision. Sections 75 to 80 of the Succession Act 2006 (NSW) allow the court to designate property as notional estate where assets were transferred out of the estate before death in circumstances that reduced what was available for Family Provision purposes.
The notional estate provisions are engaged where a person made a transfer with the intention — or in circumstances where the result was — that the transferred property would not be available to meet a Family Provision order. They are also engaged where a person entered into a transaction that did not give adequate consideration for the property transferred, and where a joint tenancy survived the deceased’s death by right of survivorship.
In practical terms, this means that assets held in jointly owned property — which passed automatically to the surviving co-owner and never formed part of the estate — can potentially be brought into the notional estate for the purpose of a Family Provision claim. Similarly, assets transferred to family trusts or to adult children shortly before death may be brought in if the court is satisfied the transfer was made in relevant circumstances.
The notional estate provisions require careful analysis in each case, both for claimants considering whether to bring a claim against what appears to be a small estate, and for beneficiaries and executors assessing their exposure. The answer is not always obvious from the face of the will and the estate accounts.
How most matters resolve
The majority of Family Provision claims in NSW settle before hearing. Mediation is common, and the NSW Supreme Court encourages it. A properly structured mediation, with both sides represented by experienced lawyers who have a realistic assessment of the range of outcomes, will often produce a result faster and at lower cost than contested proceedings.
Settlement does not mean the claimant receives everything they want, or that the beneficiaries give up everything they were left. It means the parties reach a negotiated outcome that each considers preferable to the cost and uncertainty of a hearing. The strength of each party’s legal position, the size of the estate, and the nature of the relationships involved all bear on where that outcome lands.
Where matters do not settle, they proceed to hearing before a judge of the Equity Division of the NSW Supreme Court. Hearings are preceded by the exchange of affidavit evidence, and the factual evidence — the deceased’s relationship with the applicant, the family circumstances, the financial positions of all relevant parties — is typically the most consequential part of the case.
What to do in the first weeks after a death
The weeks immediately after a death are often the most consequential in a Family Provision context. The estate is intact. The limitation period has not begun to run against potential claimants. The executor has authority to preserve the estate and time to take proper advice.
Executors should obtain probate promptly and, if there is any reason to think a claim may be made, take legal advice before making any distributions. Beneficiaries who believe they may have a claim should take advice as early as possible — not because they must file immediately, but because early advice shapes the strength of any claim and ensures that the twelve-month period is not wasted. A claimant who waits until month eleven to seek advice has less room to prepare properly than one who acts in the first month.
Gathering documents in the early weeks — financial records, correspondence that evidences the relationship between the deceased and the claimant, evidence of the contributions the claimant made to the deceased’s life and estate — is substantially easier when the matters are recent than when they are being reconstructed months later.
What this means for you
A Family Provision claim is not a challenge to the validity of the will. It is a separate application, governed by a distinct body of law, in which the court weighs the competing claims of eligible persons against the provisions of the estate. The outcome in any individual matter depends on the facts, the size of the estate, and the circumstances of the applicant. What is consistent is that the process rewards those who act early, take considered advice, and prepare properly. If you are an eligible person who has concerns about the provision made for you in a will, or an executor managing an estate where a claim is foreseeable, the first weeks after a death are the right time to seek advice, not the last weeks before the limitation period expires.
If you are dealing with an estate matter and would like to speak with one of our experienced lawyers, make an enquiry.