A family provision claim is an application for a share (or larger share) of a deceased person’s estate. It’s also known as ‘contesting’ a will.
You must be an ‘eligible person’ to make a family provision claim. This is generally limited to the deceased’s spouse, de facto partner and children. However, some states also extend eligibility to other family members or financial dependents.
After a loved one passes, your grief may be heightened by a surprising will. Perhaps your share was smaller than expected, or you weren’t included at all. A family provision claim can help you recover your rightful inheritance.
Put simply, a family provision claim involves disputing how the deceased’s money, property and other assets have been divided up. You must be an ‘eligible person’ to make a claim.
The Court determines if you’re an ‘eligible person’ by looking at your:
They may also consider:
In every state, spouses, de facto partners and biological children are eligible to contest a will. Beyond this, each state has their own eligibility laws. It’s crucial to note that eligibility does not guarantee success—it simply gives you the right to claim.
In NSW, a sibling, parent or grandchild may be eligible if they were financially dependent on the deceased.
A person who lived in a ‘close personal relationship’ with the deceased may also be eligible. This person must have provided free support for the deceased, without expectation of payment or as part of their work through a charity.
In Victoria, you can make a family provision claim if the deceased had a ‘moral duty’ to you. This can include:
All children who are under 18, living with disability, or full-time students (aged 18–25) are automatically considered financial dependents.
In Queensland, the definition of a deceased’s ‘child’ includes their biological, adopted, unborn, and step children.
Any ‘dependents’ are also eligible. This is usually a person under 18 who relied on the deceased financially. However, it can also cover the parent of their child or anyone else they financially supported.
In South Australia, you can only make a claim if you were left ‘without adequate provision’. You will need to show that your relationship to the deceased obligates them to provide for your future. This includes maintenance, education, and advancement in life.
Stepchildren or de facto partner’s children are eligible if they satisfy the adequate provision rule.
Parents or siblings can also qualify if they cared for the deceased at their passing.
In Western Australia, you can make a family provision claim if you’re left ‘without adequate provision’. This means the will does not provide adequate support for your future maintenance, education or advancement in life.
Additionally, former spouses who received (or were entitled to receive) ‘maintenance’ from the deceased are eligible.
It’s worth noting that Western Australia specifically prohibits nieces and nephews from contesting a will—regardless of their relationship to the deceased
In Tasmania, you may file a family provision claim if:
‘Adequate provision’ includes your future maintenance, education and advancement in life.
All stepchildren, adopted children and parents are eligible to claim. Former spouses and partners will be eligible if they received maintenance from the deceased.
You may also be eligible if you had a ‘significant relationship’ with the deceased. This is a relationship between two adults who are not married or related, and includes same-sex couples.