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What is a family provision claim?

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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Who can make 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.

StateTime Limit to Contest a Will
New South Wales12 months from the date of death
Victoria6 months from the date of probate
Western Australia6 months from the date of probate
South Australia6 months from the date of probate
Tasmania3 months from the date of probate
Australian Capital Territory6 months from the date of probate
Northern Territory12 months from the date of death
QueenslandYou 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:

  1. 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.
  2. Prepare claim documents: this involves creating a ‘summons’ (the legal document initiating claim proceedings) and an affidavit (your written statement of facts).
  3. Gather evidence: compile strong evidence of your relationship to the deceased, including witness statements.
  4. File your application: once all essential documentation and evidence are compiled, submit your application to the relevant court.
  5. 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.
  6. 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.
  7. 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
Nancy Kuan
Special Counsel
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  • Family Provision Claims, Motor Vehicle Accidents, Public Liability
Kathryn Morcos
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  • Family Provision Claims, Public Liability, Motor Vehicle Accidents
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How we can help you

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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