Making a Family Provision Claim During Probate in NSW

Wills are meant to reflect a person’s final wishes about how their estate should be distributed after their passing. But in some cases, a Will may leave someone believing they should have received more or anything at all. In New South Wales, eligible people can apply for a Family Provision Order if they feel the distribution of the estate doesn’t provide them with proper support. This process takes place before or during Probate and can be an important safeguard for dependants and close family members.

What Is a Family Provision Claim?

A Family Provision Claim is an application made to the Supreme Court of NSW to alter the distribution of a deceased estate. It allows an eligible person to argue that they have not been properly provided for in the Will (or under the rules of intestacy, where no Will exists).

If the Court agrees, it can make an order for provision out of the estate, which may involve adjusting the way the assets are shared. Importantly, these claims don’t automatically override the Will. Instead, the Court considers a range of factors before deciding whether to interfere with the original distribution.

Who Can Make a Claim?

Only certain people can make a Family Provision Claim in NSW. According to the Succession Act 2006 (NSW), eligible applicants include:

• The spouse or de facto partner of the deceased
• A former spouse
• A child of the deceased (including adopted children)
• A person who was, at any time, partly or wholly dependent on the deceased
• A grandchild who was dependent on the deceased
• A person who was, at any time, 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

Being eligible doesn’t guarantee a claim will succeed. The person making the claim must show that they have not received adequate provision for their proper maintenance, education or advancement in life.

When Can a Claim Be Made?

A Family Provision Claim must generally be lodged within 12 months from the date of death. It’s possible to apply for an extension, but the Court will only allow this in limited circumstances, and the applicant must provide a strong reason for the delay.

It’s important to act quickly. If the estate has already been distributed, it can be much more difficult to recover funds or assets.

What the Court Considers With Family Provision Claims

The Court doesn’t simply reallocate the estate based on who is unhappy with the Will. Instead, it considers several specific factors, including:

• The nature of the relationship between the applicant and the deceased
• The financial needs and resources of the applicant
• The size and nature of the estate
• The obligations or responsibilities the deceased had to the applicant
• Any contributions made by the applicant to the deceased’s estate or welfare
• Any provision already made for the applicant during the deceased’s lifetime
• The claims of other beneficiaries

If the applicant is now living with someone else, the financial circumstances of that person are also considered. The Succession Act 2006 (NSW) lists 16 factors that may be considered by the Court. The aim is to reach a fair outcome based on the unique circumstances of the case, not to create equality between family members.

How a Claim Affects Probate

There is no requirement in NSW for Probate or Letters of Administration to have been granted before a Family Provision Claim can be made. However, once a claim is made, the distribution of the estate is delayed until the matter is resolved.

The possibility of a claim being made can make executors cautious about distributing assets too soon.

Can Family Provision Claims Be Settled Out of Court?

Many Family Provision Claims are settled without a court hearing. Alternate dispute resolution, in the form of mediation, is a required first step, giving all parties the opportunity to reach an agreement outside of a court hearing.

This can save time, legal costs, and stress for everyone involved. However, even if a settlement is reached, the Court must still approve it. This ensures the outcome is legally binding and fair to all parties.

How a Solicitor Can Help

Family Provision Claims are often emotional and legally complex. Whether you are an executor defending a Will or someone considering a claim, professional advice is essential. A solicitor can:

• Assess your eligibility and likelihood of success
• Help gather the necessary financial and relationship evidence
• Guide you through the timeframes and procedures
• Represent you during negotiations or court proceedings
• Work to achieve a fair and efficient outcome

At Nash Allen Williams & Wotton, we support clients on both sides of Family Provision Claims. We understand the importance of protecting your rights while respecting the intentions of the deceased. Our experienced team is here to provide clear guidance and personalised support at every stage.