Who Can Ask the Court for More? Eligibility to make a Family Provision Claim in NSW

When a family member or dependent believes they have not been properly provided for in a deceased person’s Will, they may start legal action. In New South Wales, the first step is to determine if they are an ‘eligible person’ and understand their family provision claim eligibility NSW.

The Succession Act 2006 (NSW) allows certain eligible persons to apply to the Supreme Court of New South Wales if they believe a Will (or intestacy laws) has not made adequate provision for them.

Being eligible does not guarantee success. Once eligibility is confirmed, the Court will decide whether the Will (or intestacy) failed to provide adequately for the person’s maintenance, education, or advancement in life. The Court will then determine what provision, if any, should be made.

This article focuses on family provision claim eligibility NSW. The information is general only and does not constitute legal advice. If you are considering a claim, consult a lawyer experienced in estate litigation. Strict time limits apply for bringing a family provision claim in New South Wales, so seek prompt legal advice to protect your position.

Eligibility criteria

The categories of eligible persons are described in section 57 of the Succession Act.

Category 1: Spouse

This category includes a person who was the wife or husband of the deceased at the time of death. It is often the most straightforward category, involving those with a close, legally recognised relationship.

Category 2: De facto partner

A person living in a de facto relationship with the deceased at the time of death may also qualify. This includes same-sex relationships, provided the legal criteria for a genuine de facto partnership are met.

Category 3: Children

A child of the deceased includes biological and legally adopted children. In some cases, a person under the deceased’s parental responsibility by court order may also claim.

Category 4: Former spouse

The law recognises that moral or financial duties can persist after a marriage ends. A former spouse may be eligible if ongoing financial reliance or other special circumstances exist. The Court examines factors such as family law property settlements, ongoing maintenance obligations, and financial dependence on the deceased.

Category 5: Grandchildren and household members

This category is complex. To qualify, a person must:

• Have been wholly or partly dependent on the deceased at any time; and
• Be either a grandchild or a member of the same household as the deceased at the relevant time.

Stepchildren may qualify under this category if they lived with the deceased and were dependent on them. Parents, siblings, former de facto partners, or other relatives may also qualify if they were dependent and members of the same household. The test depends on individual facts, so detailed evidence is often needed.

Category 6: Close personal relationship

This category covers persons who had a genuine, close connection with the deceased.

• Definition: A person living in a close personal relationship with the deceased at the time of death.
• What this means: Two adults (not married or in a de facto relationship) living together and providing domestic support and personal care. The relationship must not be commercial or professional.

A common example is an elderly person and an unpaid live-in carer. The Court reviews arrangements to ensure they are not primarily for fee or reward.

The critical time limit

In New South Wales, a family provision claim must generally be filed within 12 months of the deceased’s death. This time limit is set out in section 58(2) of the Succession Act.

Acting within this period is crucial. Once the estate has been distributed, a claimant’s options may be significantly reduced.

What if I miss the deadline?

The Court can allow a late claim, but it is not automatic. The applicant must show sufficient cause for the delay. Factors include when they learned of the death or terms of the Will, the parties’ conduct, and how quickly they acted once aware of a potential claim.

Key takeaways

• Eligibility is the first hurdle: You must fall within a Succession Act category before the Court considers further provision.
• Dependency matters: Some categories require proof of financial dependence, domestic support, or care.
• Time is critical: Seek legal advice well before the 12-month deadline to understand your rights and options.