If you are an executor, the pressure runs the other way. You are trying to finalise an estate fairly and lawfully while a claim, or the threat of one, hangs over every decision.
Family provision claims sit at the intersection of law, money, and family. Our principal, MaryAnn de Mestre, works here as a practising litigator, a court-appointed expert, and the academic who teaches succession law at Macquarie University.
What Is a Family Provision Claim?
A family provision claim is an application asking the Supreme Court to make, or increase, provision for an eligible person out of a deceased estate.
Under the Succession Act 2006 (NSW), the Court can order provision for an eligible person’s proper maintenance, education, and advancement in life, regardless of what the will says or whether there was a will at all.
It is not about what feels fair in the abstract. It is a structured legal test, and the outcome depends heavily on how the claim is prepared and argued.
Who Can Bring a Claim?
Eligibility is broader than most people assume. Under section 57 of the Act, the following people may be entitled to claim.
| Eligible Person | Who This Covers |
|---|---|
| Spouse | A husband or wife of the deceased at the time of death. |
| De facto partner | A person living with the deceased in a de facto relationship at the time of death. |
| Child | A child of the deceased, including an adult child. |
| Former spouse | A former husband or wife of the deceased. |
| Dependent household member | A grandchild or other person who was wholly or partly dependent on the deceased and a member of their household. |
| Close personal relationship | A person who was in a close personal relationship with the deceased when they died. |
Adult children, estranged family members, and long-term carers often assume they have no standing. Frequently, they do.
The Clock Is Ticking: A 12-Month Time Limit
An eligible person generally has 12 months from the date of death to file a family provision claim in NSW. This is set by section 58 of the Act.
The clock starts at death, not at the grant of probate. The Court can extend the window, but only where it is satisfied there is sufficient cause. Delay weakens both your position and your evidence.
If you think you may have a claim, or you are an executor who has just received notice of one, early advice matters far more than most people expect.
What Does the Court Actually Look At?
Section 60 of the Act sets out the matters the Court weighs when deciding a claim. The main factors include:
- The nature and duration of the claimant’s relationship with the deceased.
- Any obligations or responsibilities the deceased owed the claimant.
- The size and nature of the estate, and any notional estate.
- The financial resources and needs of the claimant and of other beneficiaries.
- The claimant’s age, health, and contribution to the deceased’s welfare or estate.
- The claimant’s character and conduct, and any statements the deceased made about their wishes.
Every factor is fact-specific, which is why two claims that look similar on paper can produce very different results.
Notional Estate: A Distinctly NSW Feature
NSW is unusual in letting the Court draw certain assets back into a notional estate for a family provision order, even though those assets never formed part of the actual estate.
This can include jointly owned property that passed by survivorship, superannuation and death benefit nominations, and gifts or transfers made shortly before death.
In practice, estate planning designed to keep assets away from a claim does not always succeed. Executors and beneficiaries of such arrangements can be drawn into litigation they did not see coming. This is genuinely specialist territory.
If You Are the Executor
Executors carry real personal exposure in this area, and it often catches people off guard.
- Do not rush to distribute. Distributing too early, before the claim period has safely passed, can leave you personally liable if a claim later succeeds.
- Act impartially. Administer the estate according to the will and the law, not according to family pressure.
- Defend reasonably. Weigh the cost of prolonged litigation against the benefit of an early, sensible settlement.
- Expect mediation. Most matters must go through mediation before a hearing, and the majority resolve there.
Executors who get advice at the outset consistently end up in a stronger, less stressful position than those who react after the fact.
The Process, in Brief
Most family provision claims follow the same broad path.
- Initial notification of a potential claim, often through a solicitor’s letter.
- Filing of a summons and supporting affidavit material in the Supreme Court of NSW.
- Case management directions and compulsory mediation in almost all matters.
- A contested hearing only where mediation does not resolve the dispute.
Why Clients Choose M de Mestre Lawyers
Family provision disputes are emotionally charged and legally technical at the same time. You want a lawyer who can hold both.
- MaryAnn de Mestre is a sessional academic and Convenor of Succession Law at Macquarie University. She does not just practise this area of law, she teaches it.
- She has been appointed as a court-appointed expert in estate and professional negligence matters, reflecting the trust the courts place in her judgment.
- She was named Academic/Researcher of the Year at the Women in Law Awards and has been a finalist for Partner of the Year in Wills and Estates.
- She is a sought-after media commentator on succession and elder abuse, featured on ABC Radio, 2SM, and in the Australian Financial Review, The Guardian, and the Sydney Morning Herald.
- We act for both claimants and executors, which sharpens our strategy on either side of the table.
- We combine a strategic, no-nonsense approach with genuine compassion for one of the hardest periods in a family’s life.
We are a Northern Beaches firm, and we bring the same rigour to a modest family estate as we do to a complex, contested one.
Get in Touch
If you are considering a family provision claim, or you are an executor who needs clear guidance on your obligations and risk, contact M de Mestre Lawyers today.
Phone: (02) 9913 1182
Address: 27/90 Mona Vale Road, Warriewood NSW 2102
Web: www.mdemestrelawyers.com.au
Frequently Asked Questions
How much does a family provision claim cost?
Costs vary widely with how contested the claim is. Many claims settle at mediation, which keeps costs far lower than a full hearing. In some cases the estate pays the claimant’s costs, but this is not guaranteed, so it should be discussed before you commit.
Can you make a claim if there was no will?
Yes. Family provision applies whether the person died with a will or without one. If there is no will, the estate is distributed under the intestacy rules, and an eligible person can still claim they were not adequately provided for.
Will a family provision claim go to court?
Usually not to a full hearing. Almost all claims are referred to compulsory mediation, and most resolve there. A contested hearing before a judge happens only when mediation fails.
Can an adult child who was estranged still claim?
Estrangement does not automatically bar a claim. The Court considers the nature of the relationship and the reasons for the estrangement among the section 60 factors. Estranged adult children do sometimes succeed, though the estrangement can affect the size of any order.
