Think You Deserve More? A Family Provision Claim Might Prove You Right

A family provision claim can arise during one of life’s most vulnerable moments. After a loved one passes away, a will may bring clarity for some and confusion for others. In families where relationships were close or support was given over time, being excluded or given less than expected can come as a shock. 

Consider someone who has lived with and cared for her father during his illness, managing his appointments and providing daily support. When the will was read, she discovered the estate had been left entirely to others. Her name was not mentioned, despite the role she had played in his final years. 

Australian law allows certain individuals to seek a legal remedy in these situations. A family provision claim is an application to the Supreme Court seeking that adequate provision be made to the applicant from the deceased’s estate. It does not challenge the will’s validity but questions its fairness and the responsibility of the deceased to provide for eligible person or persons.  

What Is a Family Provision Claim? 

A family provision claim is an application made to the Supreme Court by someone who believes that the estate of a deceased person did not make adequate provision for them. It is a legal safeguard designed to ensure that certain individuals who had a close relationship or financial dependence on the deceased are not left without proper consideration.  

The right to make such a claim comes from the Succession Act 1981, which gives the court the authority to adjust how an estate is distributed. This applies if there is a will or if the person died without one, known as intestate. The court does not undo the will or rewrite it in its entirety. Rather it  reviews the circumstances of the deceased and the applicant to determine if a more appropriate provision should be made for the applicant.  

Who Can Make a Claim? 

Not every person who is disappointed by a will is eligible to make a family provision claim. The Succession Act 1981 defines specific categories of people who may apply. These categories are based on the nature of the relationship with the deceased and, in some cases, the level of financial dependence that existed before the person’s death. 

The eligible categories include the following:

Spouses and De Facto Partners

• A legally married spouse at the time of death 
• A de facto partner who lived with the deceased on a genuine domestic basis for at least two years; or 
• A civil partner; or 
• A former spouse, if they were still being financially maintained by the deceased 

2. Children

• Biological children 
• Adopted children 
• Stepchildren  

3. Dependants

• A parent of the deceased 
• A parent of a minor child of the deceased 
• Any person under the age of 18 who was wholly or substantially maintained by the deceased 

It is important to note that eligibility alone does not guarantee a successful outcome. The court will also examine the applicant’s needs, the nature of their relationship with the deceased, and the size and composition of the estate.  

Do You Have Grounds to Claim? 

Being eligible to make a family provision claim is the starting point, but the court will only grant provision if it is satisfied that the applicant was not properly provided for. This assessment carefully analyses if the deceased had a moral and/or legal responsibility to provide further support, and whether the applicant has a genuine need that the estate should meet. 

The concept of “adequate provision” does not follow a fixed formula. What is considered adequate for one person may not be the same for another. The court will look at the circumstances of each case, including the personal and financial situation of the applicant, the relationship with the deceased, and the size of the estate.  

The court typically considers the following factors: 

• The applicant’s financial position, including income, debts, and future needs 
• The nature and length of the relationship with the deceased 
• Contributions made by the applicant to the welfare or estate of the deceased 
• Any obligations or responsibilities the deceased had toward the applicant 
• The competing claims of other beneficiaries 
• The size and structure of the estate 
• Any evidence that the deceased deliberately left the applicant out, and the reasons for that decision 

If the court finds that the applicant’s maintenance, education, or advancement in life has not been adequately addressed by the estate, it may order a redistribution.  

What Happens If You Were Left Out of the Will? 

Being left out of the will does not prevent an eligible person from making a claim. The court asks if the deceased fulfilled their legal and moral obligation to make proper provision for the applicant. Even in cases of estrangement, the court may decide that the duty to provide support remains, depending on the reasons behind the breakdown in the relationship and the broader context of the estate. 

The court will consider several questions: 

• Was the exclusion deliberate or accidental? 
• Did the deceased leave behind a written explanation for the decision? 
• Did the applicant rely financially on the deceased? 
• Are there other beneficiaries whose provision could be reasonably adjusted? 
• Would providing for the applicant impose undue hardship on others? 

The absence of a bequest can feel like a personal judgment, but the law takes a broader view. A family provision claim offers a path to have the situation reviewed in light of fairness, responsibility, and need. The next consideration, however, is time.  

How Long Do You Have to Act? 

A family provision claim is subject to strict legal timeframes. These deadlines are not flexible by default. Missing them can mean losing the opportunity to making a claim, regardless of the strength of the claim. For this reason, understanding and observing the time limits is critical. 

In Australia, two key deadlines apply: 

The first step is to notify the executor or administrator of the estate that you intend to bring a claim. This notice should be given in writing to the Executor before an application is filed in the Supreme Court. While it does not start legal proceedings, it puts the estate on notice and can help delay distribution until your claim is considered. Filing the actual application must occur within nine months of the date of death. Failing to meet this second deadline usually prevents the claim from being heard. 

In limited cases, the court may allow a late application. However, the granting of a time extension is not automatic. The court will examine the reasons for the delay, any prejudice to the estate or beneficiaries caused by a prospective extension, and if distribution has already occurred. A strong claim may still be denied if it is brought outside the prescribed period without a convincing justification. 

What Can You Expect If You Win (or Lose)? 

A family provision claim may result in a court-ordered redistribution of the estate if the court finds that adequate provision was not made. The court may award a lump sum, periodic payments, or specific assets, depending on the applicant’s needs and the estate’s capacity to provide. The decision will also account for the interests of other beneficiaries and the overall fairness of the outcome. 

If the claim is unsuccessful, the estate will remain distributed as originally set out in the will or under the rules of intestacy. An unsuccessful applicant may also be responsible for legal costs, depending on the conduct of the case. While courts have discretion, they are more likely to award costs against an applicant if the application lacked merit or caused unnecessary delay or expense. 

Most family provision matters settle before reaching a final hearing. Outcomes through mediation often reflect the same legal principles the court that would apply but allow for greater cost and time efficiency. Regardless of how a claim concludes, careful preparation and sound legal advice can improve your position and reduce uncertainty. 

When a Claim Is Worth Pursuing 

Not every family provision claim is appropriate to pursue, even when the legal right to apply exists. The decision involves a realistic assessment of the estate’s value, the strength of the relationship with the deceased, the level of financial need, and the impact the claim may have on others. If the estate is small or heavily encumbered, there may be little practical benefit to litigation, regardless of fairness. 

The strongest claims often come from those who were financially dependent on the deceased or who contributed significantly to their care, livelihood, or estate. Where there is clear evidence of hardship, longstanding involvement, or unmet need, the court is more likely to intervene. However, even strong cases benefit from early resolution. Many applicants find that settlement through mediation avoids the emotional and financial toll of a contested hearing. 

If you are unsure if your situation justifies a claim, the most useful step is to speak with a family lawyer who understands the nuances of succession law. An informed conversation can help clarify where you stand and what options are available.