Your parent has died. A few days later, a will surfaces. You are not in it. The family home, the savings, the investments, all of it has gone to a spouse your parent married a few years ago. You receive nothing. Is that legal? And if it is, what can you actually do? In New South Wales, a family provision claim may be your most important legal option.
Yes, and It Is More Common Than You Think
If your parent remarried, their existing will was automatically revoked. This occurs under section 12 of the Succession Act 2006 (NSW). They would have needed to make a new will to avoid dying intestate. Where they did make a new will, it may direct everything to the new spouse. That will is, on its face, legally effective.
In New South Wales, a person can leave their estate to whoever they choose. There is no rule requiring children to receive a share of a parent’s estate. A valid will directing everything to a new spouse is, on its face, legally effective, regardless of how long the first relationship lasted, how much the children contributed, or how briefly the surviving spouse was known to the family.
Most people find this surprising, and it is easy to see why. The assumption tends to be that family is protected, that a parent’s estate will flow to their children regardless of what a will says. NSW law does not work that way. Testamentary freedom is the starting position, which means that within limits, a person can leave their estate to whoever they choose. A court will not unwind that simply because the outcome feels wrong.
What Is a Family Provision Claim?
Under Chapter 3 of the Succession Act 2006 (NSW), certain people can apply to the court for provision from a deceased person’s estate, even where a valid will exists. It is not a general challenge to the will and it is not a fairness review. The court does not sit in judgment of what your parent chose to do with their estate.
The court asks one statutory question: did the will fail to make adequate provision for the applicant’s proper maintenance, education or advancement in life?
Adult children of the deceased are eligible to bring this claim under section 57(1)(c) of the Act, without any additional threshold. The court applies the two-stage approach from Singer v Berghouse (1994) 181 CLR 201:
- Was adequate provision made?
- If not, what provision ought to be ordered?
Whether you get through the first stage, and what happens at the second, turns on the facts of your particular case.
When the Court Sided With the Children
In Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, the deceased left the bulk of his estate to his second wife. His adult children from a prior relationship received little to nothing. They were not estranged. They had a genuine relationship with their parent and had real expectations of being provided for. The estate was large enough that providing for more than one party was possible.
The court found that adequate provision had not been made for the children, made orders in their favour, and reduced the spouse’s share.
Three things drove the result.
First, adult children remain natural objects of a parent’s bounty even after remarriage. A parent’s obligation to their children does not simply disappear because they have started a new relationship.
Second, the spouse’s claim, while real and substantial, is not exclusive. The law does not work on the basis that a second spouse takes all, and both claims must be weighed against each other.
Third, estate size was decisive. Because there was enough to meet both claims, the court made room for the spouse and the children, with the aim not being equal division but adequate provision for each party with a legitimate claim.
Where the estate is large enough to meet competing claims, adult children have a genuine prospect of success.
When the Court Sided With the Spouse
Not every case ends that way. In Camernik v Reholc [2012] NSWSC 1537, the result was entirely different, and the reason had nothing to do with the strength of the child’s position.
The deceased’s matrimonial home had been held as joint tenants with the surviving spouse. When the deceased died, the home passed to the spouse by right of survivorship, automatically and outside the estate, without reference to the will. What remained in the actual probate estate was minimal.
The adult child brought a family provision claim and sought to bring the home back into the equation via the notional estate provisions under Part 3.3 of the Succession Act 2006 (NSW). Those provisions allow certain property that has passed outside an estate to be designated as available for provision orders in defined circumstances.
The court dismissed the claim. A forced sale would have removed the spouse’s accommodation entirely, and the spouse’s housing security was treated as the dominant consideration. Notional estate relief, while technically available, was declined.
How assets are held can determine the outcome before the legal arguments are even made, because a strong moral position is not the same as a strong legal case. If the main asset passed by survivorship, there may simply be no estate to claim against.
If you are in this situation, one of the first questions to ask is not what the will says. It is how the property was owned.
What Actually Determines the Outcome?
Looking at the case law, three things tend to shape the result.
Financial need. The court does not redistribute estates because a child feels wronged. The applicant must show a real shortfall in housing, income, health, or future security. The more pressing the need, the stronger the case.
Estate size and structure. A large liquid estate can meet more than one claim. A modest estate where the main asset passed by joint tenancy may leave nothing available to order against. Size and structure both matter.
The spouse’s position. Age, health, housing dependency, length of the marriage, and financial contributions all carry weight. Courts treat a spouse’s need for secure accommodation as a primary claim, particularly where the spouse is elderly, has limited earning capacity, or has no other housing.
There is a recognised concern in this area that wealth can pass sideways to a new spouse’s family rather than down to the deceased’s children. Courts are aware of it, and while it is not a legal principle in itself, it forms part of the picture when assessing what provision is proper.
A Harder Path: When the Claimant Is a Stepchild
Everything above concerns biological children. For stepchildren, the position is more demanding.
Stepchildren are not automatically eligible persons under section 57 of the Succession Act 2006 (NSW). They cannot apply simply as children of the deceased. Most stepchild applications must proceed via section 57(1)(e). This requires proof of household membership and dependency during the deceased’s lifetime. The court must also be satisfied that factors warrant the application. This additional threshold arises under section 59(1)(b). Biological children do not face this same requirement.
Two cases show how differently this can play out.
In Doshen v Pedisich [2013] NSWSC 1507, a stepdaughter migrated to Australia at age 16 and lived in the deceased’s household for approximately 15 months. During that period she was wholly dependent on the deceased for food, clothing, and daily necessities. After she moved out, the deceased continued to send money for her maintenance. The court found she was an eligible person, found the warranting factors were made out, and found the provision in the will was inadequate. She was awarded $75,000.
In Evans v Levy [2011] NSWCA 125, the result was different. The stepdaughter had lived as part of the household for many years and had genuinely been treated as a daughter. That history was not in dispute. By the time of the hearing, though, she had her own assets and financial resources. The court found that despite the relationship and the household history, the provision made for her was not inadequate. She was not left without sufficient means relative to her own position.
Relationship history gets a stepchild through the eligibility door, but it does not determine what happens once they are inside. What the court focuses on is financial need at the time of the hearing.
The Clock Is Already Running
Under section 58 of the Succession Act 2006 (NSW), a family provision application must be filed within 12 months of the date of death. Late applications require the court’s leave, which is not automatically given, and estates can be distributed in the meantime.
Get a copy of the will as soon as possible, confirm whether probate has been granted, and get advice early. Costs in family provision proceedings are at the court’s discretion and in a modest estate can erode or eliminate any award entirely. Knowing the economics before committing to proceedings matters as much as knowing the law.
If You Are the One Making the Will
The disputes in this article are almost always foreseeable. A parent who remarries and makes no provision for children from a prior relationship is, in most cases, setting the scene for a family provision claim, and whether that claim succeeds is a matter of fact. The litigation itself causes damage well before any court reaches a decision.
Testamentary trusts, life interests structured around a surviving spouse, and clear documented reasoning can significantly reduce the risk. Good estate planning in a blended family is not about taking sides. It is about being clear enough in your intentions that a court is not left to fill in the gaps.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by Isabelle Knight, Law Graduate
