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what is a family provision claim

what is a family provision claim?

For most people, drafting a will is a standard practice to ensure their assets are distributed according to their wishes after they pass away. Typically, a will provides for the testator’s spouse, children, family members, or close friends. However, issues often arise when beneficiaries feel inadequately provided for. This guide explains the process, eligibility, and considerations for making a family provision claim.

What is a Family Provision Claim?

A family provision claim is a legal action taken to seek a larger share of an estate than what is provided in a will. Under the Succession Act 2006 (NSW), eligible individuals can apply to the Supreme Court of NSW to alter the distribution of the deceased’s estate if they believe they have not been adequately provided for. Therefore, understanding this claim is essential for those who feel left out or insufficiently compensated by the will.

Who Can Make a Family Provision Claim?

Eligibility Criteria:
To make a family provision claim, an individual must be an “eligible person.” According to Section 57 of the Act, eligible persons include:

  • Spouse: The spouse of the deceased at the time of death, including a separated but still legally married spouse.
  • De Facto Partner: A de facto partner who was living with the deceased at the time of death.
  • Children: This includes both biological and adopted children.
  • Former Spouse: A former spouse of the deceased.
  • Dependents: Grandchildren or others who were partially or wholly dependent on the deceased.
  • Household Members: Individuals who were part of the deceased’s household at some point and dependent on them.
  • Close Personal Relationships: Persons living in a close personal relationship with the deceased at the time of death.

Conditions for Making a Family Provision Claim

Time Frame:
Eligible persons must file a family provision claim within twelve months of the deceased’s death. Meeting this deadline is crucial for the claim to be considered by the court.

Court Considerations:
When evaluating a family provision claim, the court examines several factors to decide whether to grant the application:

  • Eligibility: First, the court must confirm that the applicant is an eligible person under the Act.
  • Factors Warranting the Claim: The court then determines if there are factors that justify making the application. For instance, the relationship between the claimant and the deceased, or their financial needs, might warrant the claim.
  • Adequate Provision: Lastly, the court assesses whether the will provided adequate provision for the claimant’s maintenance, education, or life advancement.

Example Scenario: Making a Family Provision Claim

Imagine a scenario where a testator, during their lifetime, had a close personal relationship with a grandchild who was partially dependent on them. However, the will leaves the grandchild only a minor portion of the estate. The grandchild can file a family provision claim arguing that they were inadequately provided for, given their dependency and relationship with the deceased. Consequently, the court would review the claim and consider adjusting the distribution to provide adequate support.

Factors the Court Considers

1. Relationship with the Deceased:
The court evaluates the nature of the relationship between the applicant and the deceased. A closer relationship may justify a larger provision from the estate.

2. Financial Needs:
The court examines the claimant’s current and future financial needs, including their earning capacity. Thus, both immediate and long-term financial needs are considered.

3. Value of the Estate:
The size and value of the estate impact the decision, as larger estates may accommodate more generous provisions.

4. Contributions:
Contributions made by the claimant to the estate or the deceased’s welfare are also taken into account. For example, financial support or caregiving contributions might strengthen the claim.

5. Evidence of Intent:
The court considers evidence of the deceased’s intentions, such as statements or documents indicating how they wanted their estate distributed.

Why Understanding Family Provision Claims is Important

Knowing what a family provision claim entails helps potential claimants understand their rights and the legal process. If you believe you have not been adequately provided for in a will, making a timely and well-founded family provision claim can ensure you receive a fair share of the estate. Therefore, seeking legal advice early in the process is crucial to navigate the complexities and increase the likelihood of a successful outcome.


A family provision claim allows eligible individuals to seek a fairer share of a deceased’s estate if they were inadequately provided for in the will. Understanding the eligibility criteria, the legal process, and the factors the court considers is essential for anyone contemplating such a claim. Consulting with an experienced estate lawyer can provide valuable guidance and help you effectively present your case.

This article provides general information on what a family provision claim is and does not constitute legal advice. For specific guidance, consult a qualified lawyer. The examples are for illustrative purposes and may not apply to every situation.