Family Provision Claims in NSW: Who Can Claim and What the Court Weighs

The Will has been read. Your name is not in it, or it sits beside an amount that reads like an afterthought.

Here is the plain answer. In New South Wales, if you are an eligible person and the Will did not make adequate provision for you, the Supreme Court can change how the estate is divided. You have 12 months from the date of death to ask. That is a claim about provision, not about whether the Will is genuine. If the document itself is defective, that is contesting a Will in NSW, which runs on different rules.

The law is Chapter 3 of the Succession Act 2006 (NSW), which commenced on 1 March 2009. Family provision is state based: every state has its own Act and its own deadline. This page is New South Wales.

Let me break it down in the order the questions arrive.

Who can make a family provision claim in NSW

The Act sets out six categories of eligible persons.

You are eligible if you were:

1. The spouse of the deceased at the time of death
2. Living with the deceased in a de facto relationship at the time of death
3. A child of the deceased
4. A former spouse of the deceased
5. Wholly or partly dependent on the deceased at any particular time, and either a grandchild of the deceased or a member of a household of which the deceased was a member
6. Living in a close personal relationship with the deceased at the time of death

The categories are set out in section 57, Succession Act 2006 (NSW).

Category five is where people wrongly rule themselves in. Dependency alone is not enough. You also have to be a grandchild or a household member.

You are probably thinking, I was estranged from my father for twenty years, surely that ends it. It does not. Estrangement is one of the matters the court can weigh, not a disqualifier.

Same with the token gift left so you cannot claim. Eligibility rests on your relationship to the person who died, not the size of what they left you.

What you actually have to show

Before making a family provision order, the court has to be satisfied of three things:

1. That you are an eligible person
2. That, for former spouses, dependants and people in a close personal relationship, there are factors warranting the application
3. That an adequate provision for your proper maintenance, education or advancement in life was not made for you

See section 59, Succession Act 2006 (NSW).

Read that third point again, because it is the whole case. The question is not whether the Will was fair. It is whether what you were left with was adequate for your maintenance, education or advancement in life. Plenty of unfair Wills are perfectly lawful.

How long you have – 12 months from the date of death

The application must be made not later than 12 months after the date of death. The clock starts ticking on the day someone passes away, not on the day you read the Will or the day probate is granted.

Two exceptions, neither of them something to plan around. The court can allow a late application if sufficient cause is shown, and a late application can proceed if every affected party consents. An application counts as made on the day it is filed in the registry, so filing stops the clock.

See section 58, Succession Act 2006 (NSW).

What the court actually weighs

This is the question that decides most claims, and most pages skip it. The Act gives the court sixteen matters it may consider, from (a) to (p).

These carry the weight:

• The nature and duration of your relationship with the deceased
• The nature and extent of any obligations the deceased owed you
• The nature and extent of the estate, including any notional estate
• Your financial resources and needs, now and in the foreseeable future
• The financial resources and needs of every other applicant and of the beneficiaries named in the Will
• Any physical, intellectual or mental disability you or a beneficiary has
• Your age
• What you contributed to the estate, or to the welfare of the deceased and their family
• Your character and conduct

The full list is at section 60(2), Succession Act 2006 (NSW).

None of these works alone. Need on its own does not carry a claim, and neither does a long relationship or a large estate. It is how they combine: an established relationship, a genuine need, and enough in the estate to meet it.

Contribution sits on the list too, but so do the needs of every other applicant. The child who did the caring and now lives comfortably can end up with less than a sibling who has nothing. Need can outweigh contribution, and it regularly does.

How a claim runs in the Supreme Court of NSW

A family provision claim starts with a summons filed in the Equity Division of the Supreme Court of NSW. Not a Statement of Claim.

Filed alongside the summons:

• Your affidavit setting out your case
• A notice of eligible persons naming everyone else who might be entitled to claim
• An affidavit estimating your own costs on an indemnity basis up to and including mediation

Claims are then managed in the Probate and Family Provision List by the Registrar in Probate, and that list is heard on Thursdays.

The procedure is set out in Supreme Court Practice Note SC Eq 7, Probate and Family Provision List, issued 13 June 2024 and commenced 17 June 2024.

The costs affidavit tells you how the court thinks. It wants the cost known early. Preparing it is what our wills and estates lawyers in Sydney do every week.

Mediation is where most claims end

Unless the court orders otherwise for special reasons, it must refer a family provision application to mediation before it considers the application.

See section 98(2), Succession Act 2006 (NSW).

Most people who bring a claim never see a hearing. The mediation is court annexed, listed on a half day estimate, and the parties are expected to attend in person.

When an offer comes across, ask yourself these three questions:

1. What does it leave me with once my costs come out of it?
2. How does it compare with what a judge would realistically award?
3. What does another year of proceedings cost me, in time, money and in everything else?

When the answer to the third is larger than the gap between the offer and the judgment, the offer is usually the better outcome, even when it feels like less than you are owed.

What a claim costs, and who pays

Start with the one number that is fixed and public. Filing a summons in the Supreme Court of NSW costs $1,443 for an individual, the fee from 1 July 2026. The schedule changes every year on July 1st.

See the Supreme Court of NSW filing fees as at 1 July 2026.

The bigger question is who carries the legal costs. The court can order that the costs of the proceedings, including mediation, be paid out of the estate. That is a discretion, not an entitlement, and it cuts both ways: an unsuccessful applicant can be ordered to pay the other side’s costs.

See section 99, Succession Act 2006 (NSW).

Which is why the first conversation is a cost benefit one. If the estate is modest and the gap between what you were left and what you might be awarded is small, the costs can eat the difference.

What are your chances

You will see it claimed that around half of all Wills are contested. It is not supported by the research.

What the research does say is more useful. The Australian Research Council funded study run by the University of Queensland, Queensland University of Technology and Victoria University reviewed Public Trustee files. Most family provision claims brought against an estate led to a change in the distribution, and around three quarters of claims by immediate family succeeded. The study uses “contesting a Will” in the broad sense that takes in family provision claims, not only challenges to a Will’s validity.

See the Public Trustee file review, University of Queensland, QUT and Victoria University.

The honest caveat? That rate describes the claims that get brought, not the ones that could be. Weak claims are filtered out before anyone files.

Tax on what you receive

A line that gets repeated tells readers to assume the tax office takes at least 30 per cent of an inheritance. It is wrong, and it frightens people out of claims they should bring. The actual position:

There are no inheritance or estate taxes in Australia. What you receive from an estate is not taxed as income in your hands.

Read – ATO, if you are a beneficiary of a deceased estate.

Capital gains tax is not triggered by inheriting an asset. It can be triggered later, when you sell it. Assets passing to you under a court order varying a Will are treated the same way as assets passing under the Will itself.

Read – ATO, how CGT applies to inherited assets.

Income is still income. What the estate earns before it is finalised, and what the assets earn once they are yours, is taxed as normal.

Superannuation is where the 30 per cent actually comes from. A super death benefit paid to someone who is not a dependant under the tax rules is taxed at up to 15 per cent on the taxed element and up to 30 per cent on the untaxed element, plus the Medicare levy. That is a narrow rule about superannuation, not a tax on inheritances.

See ATO, paying superannuation death benefits.

Your own numbers will have their own answer, so get tax advice before deciding what to accept.

Notional estate – the NSW power other states do not have

You are probably thinking, if the estate is basically empty, what is even left to claim? That’s where a notional estate comes into play, which is when property that did belong to the deceased close to when they passed away may be made available for a family provision claim.

This is also where New South Wales differs from the rest of the country. In certain circumstances, property that the deceased transferred or otherwise dealt with before their death can be treated as notional estate and made available to make a family provision claim. This can apply where the deceased transferred property for less than its full value or otherwise took steps that resulted in the property no longer being available in their estate.

In practice this can include a house held as joint tenants that passes automatically to the surviving owner, property transferred before death and assets transferred into a trust.

See sections 75 and 80, Succession Act 2006 (NSW).

No other state has it. It is the biggest single reason a New South Wales claim can succeed against an estate that looks empty.

A claim, start to finish

A father died and left his adult daughter out. His reasoning, put in writing, was that she was already provided for. Years earlier her mother had received around $43 million in a divorce settlement from him. The daughter claimed $3.3 million against his estate.

The court found the father still owed her a moral duty, which is how the adequate provision question gets argued. She did not have direct access to her mother’s $43 million, and it was not available to meet her needs. She was awarded $1.15 million.

The lesson sits in that gap, and the same reasoning applies in New South Wales. What a parent assumes about your finances is not the test. What you can actually access, when you need it, is.

Do you have to wait for probate?

No. An application can be made whether or not administration of the estate has been granted. If nobody has applied for a grant, the court can grant administration for the specific purpose of dealing with your claim.

See sections 58(1) and 91, Succession Act 2006 (NSW).

A stalled probate application is not a reason to let your 12 months run down.

What if there was no Will?

The intestacy rules decide who inherits when someone dies without a valid Will, and they sit in Chapter 4 of the Succession Act. That is a separate question from whether you can claim: the eligible person list applies whether there was a Will or not. If the intestacy rules did not make adequate provision for your maintenance, education or advancement in life, the court can change that distribution.

See section 59(1)(c) and Chapter 4, Succession Act 2006 (NSW).

Being the person the rules happen to favour, or skip, does not settle what is adequate.

What if you are the executor?

Two situations, and they are very different. Executor is the everyday word; if there was no Will you are an administrator, and both sit under the term legal personal representative.

If someone else has brought a claim, your job is to defend the estate, keep the beneficiaries informed, and not distribute while the claim is on foot. The Act protects a legal representative who distributes after the proper notice period and without notice of a claim, so once you know a claim is coming, that protection is gone. For the wider role, see what an executor actually does.

See section 93, Succession Act 2006 (NSW).

If you are the executor and you also want to bring your own claim, you are on both sides of the same matter. That usually means separate representation, so the estate is defended by someone whose only interest is the estate.

Where that leaves you

A person is allowed to make a Will that seems unfair. That is not the test, and it will feel like an insult regardless. The law asks a narrower question: whether what you were left was adequate, measured against your circumstances, the estate, and everyone else with a call on it.

If you think it was not, you have 12 months from the date of death, and you want to know early whether the claim is worth what it costs to run.

Bring three things to a first conversation: the Will if you have it, the date of death, and a rough picture of what the estate holds, including anything that passed outside it. That is enough for me and my team to tell you whether you are an eligible person, whether the notional estate rules reach anything, and whether the numbers justify filing. If they do not, we will tell you that. Call 1300 614 732, or speak to our wills and estates lawyers in Sydney.