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Losing a loved one is always difficult, especially if you feel your inheritance is unfair. For 25 years, our specialist lawyers have helped Australians secure their rightful inheritance.
A family provision claim is where you apply to the court for a share (or larger share) of a deceased person’s estate.
To make a family provision claim, you must be an ‘eligible person’. This generally means you were related to the deceased or financially dependent on them.
When deciding on a family provision case, the court looks at several factors, including your financial situation, relationship to the deceased, and whether they had a ‘moral obligation’ to provide for your future.
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Find out if you’re eligible for a family provision claim.
In each state, spouses, de facto partners, and biological children are automatically eligible to make a family provision claim. Beyond this, each state has its own eligibility laws.
In NSW, you may be eligible if you’re a sibling, parent, or grandchild who was financially dependent on the deceased.
You could be eligible if you shared a ‘close personal relationship’ with the deceased, meaning you supported them without expecting payment or as part of charity work.
In Victoria, you may have a family provision claim if the deceased had a moral obligation to you. This can apply to:
Step-children or anyone treated as a child by the deceased.
Grandchildren.
Registered carers.
Other household members who were financially dependent on the deceased.
Additionally, all children who are under 18, living with a disability, or full-time students aged 18 – 25 are automatically considered financial dependents.
In Queensland, the definition of a deceased person’s ‘child’ includes their biological, adopted, unborn, and stepchildren.
Additionally, ‘dependents’ are eligible to make a claim. This typically refers to a person under 18 who relied on the deceased financially. However, it can also include the parent of their child or any other individual who they financially supported.
In South Australia, you can only make a claim if you were left ‘without adequate provision’. You’ll need to demonstrate that your relationship to the deceased obligated them to provide for your future needs, including maintenance, education, and advancement in life.
Stepchildren or the children of a de facto partner can be eligible if they meet the ‘adequate provision’ requirements.
Parents or siblings may also qualify if they provided care for the deceased at the time of their passing.
In Western Australia, you can file a family provision claim if the will leaves you ‘without adequate provision’. This means the will fails to provide sufficient support for your future maintenance, education, or advancement in life.
Furthermore, former spouses who received (or were entitled to receive) ‘maintenance’ from the deceased are eligible to make a claim.
It’s important to note that Western Australia explicitly prohibits nieces and nephews from contesting a will, regardless of their relationship to the deceased.
In Tasmania, you can lodge a family provision claim if:
You are an eligible person, and
The deceased has not made ‘adequate provision’ for you.
‘Adequate provision’ encompasses your future maintenance, education, and advancement in life.
All stepchildren, adopted children, and parents are eligible to make a claim. Former spouses and partners will also be eligible if they received maintenance from the deceased.
Additionally, you may be eligible if you had a ‘significant relationship’ with the deceased. This refers to a relationship between two adults who are not married or related, including same-sex couples.
Can I make a family provision claim if I’m the executor?
In many cases, yes — but you must first renounce your role as executor. Since your duties as executor involve distributing the estate and defending it against legal contests, filing your own family provision claim creates a conflict of interest.
To proceed with your claim, you need to file a ‘renunciation of probate’ with the court. We strongly suggest consulting a lawyer about your rights before doing so. While all family provision claims can be complex, those brought by executors have an added layer of complexity. An expert lawyer will ensure your claim meets all legal requirements and is not unfairly delayed or denied.
What reasons does the court consider?
When deciding on a family provision claim, the court considers various factors, including:
Your relationship with the deceased.
Whether you can get financial support from another person.
The size of the estate.
Your age and health, including any disabilities or special needs.
Your character and conduct, both before and after the deceased's passing.
Any contributions you made to the deceased's estate.
Your financial situation and future financial needs.
Additionally, they may look at:
Any care you provided to the deceased or their family.
The value of the deceased's estate, including any debts.
Whether the deceased made any promises to you prior to their passing.
The strength of any other competing claims.
Customary law (in cases involving First Nations people).
Do time limits apply to family provision claims?
Strict time limits apply to every family provision claim. The exact time limit depends on the state you’re in.
State
Time Limit to Contest a Will
New South Wales
12 months from the date of death
Victoria
6 months from the date of probate
Western Australia
6 months from the date of probate
South Australia
6 months from the date of probate
Tasmania
3 months from the date of probate
Australian Capital Territory
6 months from the date of probate
Northern Territory
12 months from the date of death
Queensland
You must inform the executor in writing of your intention to dispute the will within 6 months of the date of death. After that, you have 3 more months to file a claim in court.
Regardless of your state, it’s crucial to act swiftly. Once the assets are distributed, it becomes significantly more challenging and costly to make a claim.
If you’re outside the time limit, there are still options available — just contact a lawyer as soon as possible. Our specialised lawyers can apply for an extension on your behalf. Over the years, we’ve successfully resolved numerous delayed claims.
Can I make a family provision claim if there’s no will?
Yes, you can still make a family provision claim even if the deceased died without creating a will.
When a person dies without a will (known as dying ‘intestate’), the distribution of their assets and property is based on the laws of their state or territory.
Without a will, the estate is divided among the deceased’s immediate family members. However, before this can happen, someone must apply to the court for permission to administer the estate.
The distribution follows a specific order of succession, usually giving priority to the surviving spouse, children, and other close relatives. If you believe the division of the estate is unfair, you’re still entitled to contest it with a family provision claim.
How to make a family provision claim
Although each case is unique, the process of making a family provision claim typically includes the following steps:
Notify the executor: inform the executor formally of your intention to make a claim, as this is a legal requirement for all family provision claims.
Prepare claim documents: this involves creating a ‘summons’ (the legal document initiating claim proceedings) and an affidavit (your written statement of facts).
Gather evidence: compile strong evidence of your relationship to the deceased, including witness statements.
File your application: once all essential documentation and evidence are compiled, submit your application to the relevant court.
Await the estate’s response: after filing your claim, the estate (the other party) will have the chance to respond and provide their own court documents, witness statements, and relevant material.
Attend mediation: participate in a mandatory mediation session with the other party. During this process, your lawyer will manage all negotiations to secure the best possible outcome.
Go to court (if necessary): if a fair settlement cannot be reached through mediation, your claim will proceed to court.
Meet the team
Our team use their extensive experience to increase your chances of success. We’ve won many awards for our work, including ‘Compensation Law Firm of the Year 2020 GBM Global Awards.’
Leon Monaco
Managing Partner
English
Workers Compensation, Motor Vehicle Accidents, Public Liability, Medical Negligence
There is no way I would've won without Monaco. My family and I are so grateful.
When my life turned upside when my dad passed, the last thing I could handle to process was his estate & the hurdles that presented.
Monaco Solicitors, especially my amazing lawyer Ben, literally saved my life. There is no way I would have ended up with the 100% in winnings if it were not for his extensive knowledge, persistence & professionalism throughout the whole process. I honestly can not thank Monaco Solicitors enough for the life-changing result they have given me & my family.
They believed in my argument & proof from the very beginning & with their extensive knowledge in law, gave me the best chance I could ever have. Thankyou so much Monaco Solicitors.
I am forever thankful! God bless you for being there for me whenever I called.
Monaco Compensation Lawyers are second to no-one. Anthony and his team were there for me every step of the way. When I got disheartened or down, I would make one phone call to the team at Monaco Solicitors, and they were there for me instantly—reassuring me and consoling me.
I was completely surprised and also delighted by the outcome. Thank you so much, Monaco Compensation Lawyers. You changed my life forever; for the better. We were extremely successful and I am forever thankful. God bless this amazing team.
I knew it from the very first phone call: I had found a compassionate law firm.
Monaco Solicitors, I have no hesitation in recommending Daniella Dababneh and her team. After I suffered a serious workplace accident, I was in need of legal help.
From the very first phone call, I was treated with respect and I was always kept in the loop of the status of my claims, Early Release of Super & TPD. Both claims have been successful.
Good result! We had a complicated claim but they got the job done.
My brothers and I had a complicated claim. I found Ben Ralph to be very helpful, himself and Sally Sutton worked hard for just over a year to get through our claim. They achieved a good result and got the monies paid to myself and my brothers.
Their communication was fantastic, and they would always let us know when they had an update or when they expected an update. If I had a question Ben was always happy to answer to the best of his knowledge and do extra research if he was un-sure. We went with Ben because he specialized in super and feel that he did an awesome job with our claim, I would definitely recommend Ben and his team. He was very professional but also had some empathy and understanding which was nice 🙂
Thank you for accomplishing so much in such a short time.
Great communication, empathy and understanding. My case worker Daniella was a saint, understanding and patient and always passing on any updates in record time.
I was at rest in a very stressful situation, a bad situation. It was made to cope with because of the professionalism displayed at every turn by this super supportive team.
A Massive thank you to Daniella from me personally for all that you were able to accomplish in such a short time. To say I owe you is an understatement.
Monaco helped me get much more compensation than I expected.
Monaco Lawyers helped me to receive compensation for an ongoing injury I sustained after I was simply driving home from work and was driven into head on by an incompetent and negligent driver who I believe was texting at the time of the accident.
Monaco Lawyers were keen to help me, understanding and easy to work with. I received more than I thought I would get with the help of one of the Monaco Lawyers who knew exactly what she was doing, and fought on my behalf for a very good outcome.
I continue to have problems with my foot, but I feel I have received justice for something that was completely not my fault.
They helped me juggle my injury claim and my mum's full-time care.
I highly recommend Monaco Solicitors. I was claiming PI through my superannuation for workplace injuries. They were doing a no win no fee which was great as I am a carer for my mum and don’t earn much.
Everyone I dealt with were so kind and helpful. They helped me where I was finding things difficult due to caring for my mum. They kept me up to date on what was happening.
Monaco Solicitors are very professional and I would recommend them if you are looking for a good solicitor.
The bill? Surprisingly reasonable, less than expected.
Sally was very helpful and always kept me up-to-date so if you ever use Monaco Solicitors just make sure you get Sally she’s very good. And the bill was very reasonable I thought it would be higher.
Monaco's help reduced a 12-month process to just a few months.
My father originally found Monaco online for super claims,. They had discussed with him in great detail the processes and had been kind and very helpful a few years ago. When needing help with my mothers super claim I knew I could trust Monaco again.
Not only have we had weekly updates and a great team of support, it has been an easy process. When busy or unable to process documentation ourselves they have proceeded on our behalf and what could have been a 12 month process has only taken a few months with their constant drive and assistance along the way. Thank you to the team! You have saved me a lot of lost time and it is worth every penny spent when the amount of stress is taken away.
Today, after only 8 weeks, I got the best news: my claim was successful!
Today I received the best call of my life. It’s finally here, and I couldn’t be happier! I was referred to Monaco solicitors by my sister in law after sustaining work injuries. From the moment I contacted them the whole process was easy and I was always well informed.
Monaco’s have checked in on me on many occasions making sure that I was kept well in the loop during each step.
My TPD claim was lodged 8 weeks ago and today the news I had been waiting for arrived that it had been successful.
I can’t thank the staff at Monaco’s enough for all their expert advice and would highly recommend them to anyone in a heartbeat. The results were above and beyond what I had expected which I solely believe was due to their expertise and experience in this area.
Thank you so much Monaco for making my life that little bit easier.
For over 25 years, we’ve helped Australians secure their rightful inheritances. Our lawyers will guide you through every aspect of the claims process, including proving eligibility, compiling strong evidence and ensuring you meet all time limits.
With a 100% success rate in will dispute claims, we have the expertise to ensure you and your family receive the financial security you deserve.
Plus, our No Win No Fee Guarantee keeps your claim risk-free. There are no upfront costs and you’ll pay nothing until we successfully resolve your claim.
Speak to us today for free advice on your situation. Find out whether you’re eligible and the best strategy for winning your claim.
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Use our online claim checker to instantly find out if you have a claim. Alternatively, just give us a ring — our expert lawyers are always ready to answer your questions.
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