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Your Experts Guide to Family Provisions Claims


A family provision claim is a legal process in Australia that allows eligible persons to seek a share, or a larger share, of a deceased person's estate if they believe they have not been adequately provided for in the will. The primary purpose of these claims is to ensure that the financial needs of close family members and other dependents are met by the deceased person's estate.


In essence, family provision claims recognise that a testator (the person who makes the will) has a moral and legal responsibility to provide for the proper maintenance and support of certain persons, even after their death. The law in Australia is designed to strike a balance between respecting the testator's testamentary freedom and ensuring that eligible persons are not left in financial hardship.


It is fair to say that if a family provision claim is made on an estate it may drag out for a number of years thereby depriving beneficiaries of much needed financial resources. At the same time legal fees for the Executor, the beneficiaries and one or more family provisions claimants will add up. In the case of Miller v Taylor in the WA Supreme Court a $600,000 estate, subject to a four year family provision legal stoush, ended up with more than $500,000 in legal fees.


The process of making a family provision claim varies slightly between states and territories, but generally, it involves the following steps:

  1. Determining eligibility: To make a family provision claim, the claimant must be an "eligible person" under the relevant legislation. In most states and territories, this includes spouses, de facto partners, children, and, in some cases, other dependents and individuals who lived with the deceased in a close personal relationship.

  2. Filing the claim: The claimant must file an application with the court, typically within a specified time limit after the date of the deceased's death. The application should include the reasons for the claim, the relationship between the claimant and the deceased, and details of the financial needs of the claimant.

  3. Court proceedings: The court will then consider the claim and may require the parties to attend mediation or other alternative dispute resolution processes. If the matter is not resolved, the court will hold a hearing and make a decision based on the evidence presented.

  4. Court order: If the court determines that the claimant has not been adequately provided for in the will, it may order that a portion of the estate be allocated to the claimant. The court will consider factors such as the size of the estate, the financial needs of the claimant, the nature of the relationship between the claimant and the deceased, and any competing claims on the estate.

Time limits to make a family provision claim vary between states and territories in Australia. Generally, these limits are as follows:

  1. New South Wales (NSW): 12 months from the date of death.

  2. Victoria: Six months from the date of the grant of probate or administration.

  3. Queensland: Nine months from the date of death.

  4. South Australia: Six months from the date of the grant of probate or administration.

  5. Western Australia: Six months from the date of the grant of probate or administration.

  6. Tasmania: Three months from the date of the grant of representation.

  7. Australian Capital Territory (ACT): 12 months from the date of death.

  8. Northern Territory (NT): 12 months from the date of the grant of probate or administration.

In New South Wales, the concept of a "notional estate" is unique in Australia. A notional estate is property or assets that the deceased disposed of before their death, which can be brought back into the estate for the purpose of a family provision claim. The court may deem it appropriate to include a notional estate if it believes that the deceased person intentionally disposed of assets to defeat or limit the claim of an eligible person.


In conclusion, a family provision claim is an essential legal mechanism in Australia that ensures the fair distribution of a deceased person's estate among eligible persons. The process and time limits for making such claims vary across states and territories, and it is crucial for claimants to be aware of these differences when pursuing a family provision claim.

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