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Ensuring Fairness in Estate Distribution: A Guide to Family Provision Claims in NSW

This newsletter outlines the key aspects of Family Provision law to help you understand this important area.

The passing of a loved one is a difficult time. When a Will is read, it can sometimes bring an additional layer of distress if a family member or dependant feels they have been left without adequate support. In New South Wales, the law recognises that a Will-maker’s freedom to dispose of their estate is not absolute. The Succession Act 2006 (NSW) provides a safety net for certain individuals to seek further provision from an estate if they have been left without proper maintenance, education, or advancement in life. In such cases, an eligible person may apply to the Court for a family provision order.

When Can a Will be Challenged?

A Family Provision Claim is not a general challenge to the Will-maker’s decisions. Instead, it is an application to the Supreme Court of NSW asking it to alter the distribution of the estate on the basis that the Will (or the rules of intestacy if there is no Will) did not make adequate provision for the applicant’s proper maintenance, education, or advancement in life. The Court’s role is not to rewrite the Will according to its own ideas of fairness, but to determine whether the deceased’s moral duty to make provision for the applicant has been fulfilled.

Who is Eligible to Make a Claim?

The Act defines specific categories of “eligible persons” (Section 57). These include:

• The spouse (including a de facto partner) of the deceased at the time of death.

• A child of the deceased (of any age).

• A former spouse.

• A person who was, at any time, wholly or partly dependent on the deceased and who is a grandchild or was a member of the deceased’s household.

• A person who was living in a “close personal relationship” with the deceased at the time of death.

Eligibility alone does not guarantee success-the applicant must also demonstrate a need for provision.

What Does the Court Consider?

If you are an eligible person, the Court will undertake a detailed assessment. Key factors (as set out in Section 60(2) of the Act) include:

• Your financial resources, needs, and circumstances.

• The nature and duration of your relationship with the deceased.

• Any obligations or responsibilities the deceased had towards you or any other applicant/beneficiary.

• The size and nature of the deceased’s estate.

• Your contribution (financial or otherwise) to the acquisition, conservation, or improvement of the estate, or to the deceased’s welfare.

• Any provision already made for you by the deceased during their lifetime or from the estate.

Time Limits Are Critical

Family provision applications must generally be filed within 12 months of the date of death. The Court may allow an application to proceed out of time, but this requires special leave and a satisfactory explanation for the delay. Strict adherence to time limits is therefore essential.

Impact on Executors and Beneficiaries

Family provision claims can delay the administration of an estate and affect distributions to beneficiaries. Executors have a duty to:

• Act impartially.

• Preserve estate assets.

• Avoid premature distribution where a claim is possible, as early distribution of the whole estate may expose the executors to personal liability in the event of a successful family provisions claim.

I strongly advise executors to seek legal guidance before making any final distributions. For beneficiaries, understanding this process can help manage expectations during the estate administration period.

Resolving Claims Without Court

Early legal advice can help executors manage risk and comply with their obligations. Many claims are able to be resolved through negotiation and mediation, avoiding the cost and stress of contested litigation. Early engagement often leads to more practical and cost-effective outcomes for all parties.

How We Can Assist

Family provision matters can be legally complex and emotionally sensitive. Whether you are considering making a claim, defending one, or acting as an executor, early advice can help you understand your position and protect your interests. Our team provides clear, practical guidance and can assist you through each stage of the process in a confidential and supportive manner. Our goals are to:

• Provide clear, realistic advice to potential applicants on the merits of a claim.

• Robustly defend the wishes of Will-makers and the interests of beneficiaries when claims are made.

• Seek efficient, out-of-court settlements through mediation wherever possible, to preserve family relationships and reduce costs.

• Advise clients on proactive estate planning strategies designed to minimise the risk of future disputes.

Whether you are an individual concerned about your provision from an estate, an executor navigating a potential claim, or someone wishing to draft a Will that is clear and considered, please contact me to arrange an appointment or discuss your circumstances.

Wishing you a wonderful day,

Jeffrey Choy 

JCL Legal

0419 233 670

[email protected]

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Liability limited by a scheme approved under Professional Standards Legislation.

Legal Disclaimer: This guide is for informational purposes only and does not constitute legal advice.