One of the most persistent myths in estate planning is that a properly drafted Will prevents people from making claims against an estate. In reality, a Will is often only the starting point. In New South Wales, the law allows certain people to ask the Supreme Court to intervene if they believe a deceased person failed to make adequate provision for them.
These applications are known as family provision claims. They are common, emotionally charged, and frequently misunderstood. Many arise even where the Will was carefully prepared and reflects the deceased’s genuine intentions. Understanding why that happens – and how courts approach these claims – is essential for anyone involved in estate planning or administration.
What a family provision claim is (and what it isn’t)
A family provision claim is not an attack on the technical validity of a Will. The Court is not being asked whether the Will was properly signed or whether the deceased had capacity. Instead, the Court assumes the Will is valid and asks a different question:
Did the deceased make adequate provision for the applicant’s proper maintenance, education or advancement in life?
That language is deliberately broad. It allows the Court to look beyond rigid entitlements and consider the realities of the applicant’s circumstances. At the same time, it makes outcomes harder to predict. Two estates with similar Wills can produce very different results depending on the people involved.
Who can bring a claim
Only people who fall within defined categories can bring a family provision claim. These include:
spouses and de facto partners,
former spouses in some circumstances,
children of the deceased (including adult children),
stepchildren who were dependent on the deceased, and
people who were wholly or partly dependent on the deceased and lived with them.
Being eligible to apply does not mean a claim will succeed. Eligibility simply opens the door. What happens next depends on need, relationship, and the overall estate context.
Adult children often find this confronting. Many assume inheritance is an entitlement. Under NSW law, it is not.
Time limits and why they matter
Family provision claims must generally be commenced within 12 months of the date of death. It is possible for a Court to allow late claims, but extensions are discretionary and only granted in exceptional circumstances.
From an executor’s perspective, this timeframe is critical. Executors who distribute estate assets before the limitation period expires may be personally exposed if a claim is later brought and the estate no longer holds sufficient funds.
In practice, prudent executors treat the first year as a holding period. That can be frustrating for beneficiaries, but it is often the safest course.
Why claims arise even with well-drafted Wills
One of the most misunderstood aspects of family provision law is that claims often arise even where the Will was competently drafted and carefully considered.
Common triggers include:
second or later marriages,
estrangement followed by reconciliation late in life,
significant changes in asset values after the Will was signed,
adult children experiencing financial difficulty years after the Will was made, and
informal promises or expectations that were never documented.
In these cases, the issue is not legal error. It is the gap between the deceased’s intentions at one point in time and the family’s circumstances at another.
Courts are acutely aware of this tension. They do not approach these cases as moral judgments on the deceased, but as assessments of whether adequate provision exists now.
What “adequate provision” really means
Adequate provision does not mean equality. Nor does it mean fulfilling expectations. The Court looks at whether the provision made was sufficient for the applicant’s proper maintenance and advancement, having regard to the size of the estate and any competing claims.
Relevant factors include:
the applicant’s financial position, health and earning capacity,
the nature and duration of their relationship with the deceased,
contributions made by the applicant to the deceased’s welfare or estate,
the deceased’s obligations and responsibilities to others, and
any explanation the deceased gave for their testamentary choices.
This is not a box-ticking exercise. Judges weigh these factors holistically, and reasonable minds can differ. That is why outcomes are often difficult to accurately predict.
Estrangement does not end the enquiry
A common assumption is that estrangement defeats claims, particularly by adult children. In practice, estrangement complicates claims but does not necessarily defeat them.
Courts will ask:
who caused the estrangement,
whether there were attempts at reconciliation,
the extent of ongoing support (financial or otherwise), and
whether the estrangement justifies exclusion given the applicant’s current need.
Some claims succeed despite long periods of separation. Others fail despite close relationships. The analysis is fact-driven, not formulaic, meaning that each case will be determined on its unique circumstances.
Testamentary trusts and family provision claims
Testamentary discretionary trusts are often part of estates facing family provision claims. They can assist with structuring provision, but they do not make estates immune.
Courts look at substance over form. Where a beneficiary:
controls the trust,
has unfettered access to income or capital, or
can effectively benefit at will,
trust assets may still be relevant when assessing whether adequate provision has been made.
This is why control provisions matter as much as beneficiary classes. From a claims perspective, who holds the reins often matters more than who is named on paper.
What actually happens once a claim is made
Once proceedings are commenced, the matter rarely races to a final hearing. The Supreme Court actively encourages resolution, and mediation is usually ordered.
Mediation is where most claims are resolved. By that stage:
the estate’s assets are usually clear,
parties have a better understanding of risk,
emotional positions have softened, and
cost exposure is front of mind.
Settlements often involve adjustments rather than complete rewrites of the Will. The aim is usually to reach a pragmatic outcome that reflects need while preserving as much of the estate as possible.
Litigation versus mediation – the reality
Family provision litigation is expensive, slow and emotionally draining. Court proceedings can take years. Costs can often consume a significant portion of the estate.
For that reason, most experienced practitioners approach these matters with a strong focus on early resolution. That does not mean capitulation. It means realistic assessment.
Courts are alert to unreasonable behaviour. Applicants who overreach and executors or beneficiaries who refuse to engage constructively can face adverse cost consequences.
Guidance for executors
Where family provisions claims arise, executors can often feel caught in the middle. Their role is not to defend the Will at all costs, nor to appease every disgruntled claimant. Their obligation is to administer the estate properly and neutrally.
In practice, that means:
not distributing prematurely,
obtaining advice early when a claim is threatened,
remaining even-handed between competing interests, and
avoiding taking personal positions in family disputes.
Executors who act prudently are usually protected on costs. Those who act emotionally or defensively may not be.
Misconceptions that frequently derail matters
These are some misconceptions that we often see:
“The Will is clear, so the claim will fail.”
Clarity helps, but it is not decisive.
“Adult children never succeed.”
Some do, particularly where need is established.
“Small estates aren’t worth claiming against.”
That may be the case, however claims are brought against modest estates every year. Many people will also have different opinions on what a ‘small estate’ is.
“If we delay, the claim will go away.”
Delay often increases risk and cost.
Understanding these realities early changes how parties approach negotiations.
Why early legal advice makes a difference
Family provision claims sit at the intersection of law, family history and financial reality. Early advice allows parties to:
In many cases, informed early mediation achieves outcomes that litigation never would.
Key takeaway
Family provision claims exist to correct situations where the law considers that adequate provision was not made. They do not invalidate Wills, but they can significantly reshape estates.
For those planning estates, understanding how claims arise is essential. For executors, a cautious and even-handed approach is essential. For beneficiaries, a clear-eyed assessment of risk and outcome is often more productive than a focus on principle alone.
Speak to a wills and estates lawyer
Whether you are administering an estate, considering a claim, or planning your estate to reduce future risk, obtaining advice early can help clarify your position and avoid unnecessary cost or conflict. The family provision lawyers at Thornton + King have many decades of experience in dealing with family provision claims and contested estates. To speak to a contested estate specialist, give us a call or submit an enquiry now.
