Our examples use the Doe family. Jane (48) and John (50) are married and live in Western Sydney. They have 2 children together, Mia (19) and Leo (15). John also has a son, Sam (24), from a previous relationship, who lives with his mother. Their home is held as joint tenants.

What is a family provision claim?

A family provision claim is an application to the NSW Supreme Court by an eligible person who says your will (or the intestacy rules, if there is no will) did not make adequate provision for their proper maintenance, education or advancement in life. If the court agrees, it can order that they receive a share, or a larger share, of your estate. This is what most people mean when they talk about "contesting a will".

It is different from challenging whether a will is valid. A family provision claim accepts the will and asks the court to change the outcome.

Who can make a claim in NSW?

Only an "eligible person" can apply. In NSW that is:

• Spouse: your husband or wife at the time of your death.
• De facto partner: a person in a de facto relationship with you at the time of your death.
• Child: any child of yours, including adult children and adopted children.
• Former spouse: a person who was previously married to you.
• Dependant: a person who was at any time wholly or partly dependent on you and who was either your grandchild or a member of your household at that time. A step-child is not automatically eligible, but can qualify this way.
• Close personal relationship: an adult living with you at your death where one or each of you provides the other with domestic support and personal care, other than as a spouse or de facto partner. This does not cover a paid carer, or care provided on behalf of an organisation.

The last 3 groups must also show there are factors that warrant them making a claim. Spouses, de facto partners and children do not have that extra hurdle. For the Does, Sam is John's child, so he is eligible as of right, as are Jane, Mia and Leo.

How long does someone have to make a claim?

A claim must be filed within 12 months of the date of death. The court can allow a late claim, for example where there is sufficient cause. If the estate has already been properly distributed, that can count against allowing a late claim and makes recovery harder, although in some cases the court can still reach distributed property as notional estate. A claim can be made before or after probate is granted, so an eligible person does not have to wait for the executor.

This is one reason executors are usually advised not to distribute the estate until at least 6 months after death, after publishing a notice of intended distribution, and not at all while a claim is on foot. See our guide to probate vs letters of administration for the steps after death.

What does the court look at?

The court first asks whether the applicant was left without adequate provision, and if so, what provision ought to be made. It can weigh a wide range of matters, including:

• Relationship: the nature and length of the relationship between the applicant and the deceased, and any obligations the deceased had to them.
• Needs: the applicant's financial resources and needs, now and in the future, including their age, health and earning capacity.
• The estate: the size and nature of the estate, including any notional estate, and its liabilities.
• Other claims: the competing needs of the other beneficiaries, such as a surviving spouse.
• Contributions: any contribution the applicant made to building up the estate or to the deceased's welfare, including unpaid care.
• Lifetime provision: what the deceased already gave the applicant during their life.
• Conduct and evidence of wishes: the applicant's conduct towards the deceased, and any evidence of the deceased's reasons and wishes.

The court is not bound to follow your wishes. Your reasons are evidence it will consider, not a veto.

Can the court reach assets outside my will?

Yes. This is where NSW differs from most other states. The court can designate property that never passed through your will as notional estate and use it to fund an order. That can include:

• Jointly owned property: your interest in property held as joint tenants, which passes to the survivor automatically on your death.
• Super and insurance: death benefits paid directly to a nominated beneficiary under a binding nomination.
• Transactions within 3 years of death: gifts or other dealings made with the intention, wholly or partly, of denying or limiting provision for an eligible person.
• Transactions within 1 year of death: dealings made at a time when your moral obligation to make adequate provision for an eligible person was substantially greater than any moral obligation to make that transaction.

For the Does, John's half of the home passes to Jane by survivorship, but the court could treat it as notional estate to fund an order for Sam. Joint tenancy, a binding death benefit nomination or a testamentary trust can change what is easily reachable, but none of them is a shield in NSW. The safest assumption is that everything you own or control is reachable. See joint tenants vs tenants in common.

Who pays the legal costs?

Costs are in the court's discretion, but for a reasonable claim the applicant's costs are often ordered out of the estate, along with the executor's. An unsuccessful applicant can be ordered to pay costs, but that is far from certain. In a modest estate, legal costs on both sides can consume a large share of what you meant to leave. Many claims settle, often at mediation, but even a settled claim delays the estate and strains relationships.

Why does leaving an adult child nothing rarely work?

Many people assume that an adult, independent child has no right to anything. NSW courts do not see it that way. Adult children regularly succeed where they have modest means, health problems, caring responsibilities or limited earning capacity, and estrangement alone does not disqualify them, particularly where the parent contributed to the breakdown. Leaving a child out entirely tends to present the court with a clean question: was nothing adequate? The answer is often no.

In the Doe family, if John's will leaves everything to Jane and then to Mia and Leo, and Sam receives nothing, Sam has a clear path to a claim. The court would weigh Sam's finances and his relationship with John against Jane's needs as a widow raising Leo. The likely result is that the family spends money and time reaching a figure John could have chosen himself.

How can I reduce the risk of a claim?

No will can stop a claim in NSW, but careful planning makes one less likely and easier to resolve.

Make some provision rather than none

A defined gift to a person who might otherwise claim often reduces the risk more than leaving them out. It shows you considered them. For John, a fixed cash gift to Sam, set at a level that reflects Sam's circumstances and the size of the estate, is often a better outcome than a contested claim.

Record your reasons in a signed statement

A signed and dated statement explaining why a person receives less, kept with your will, is evidence the court can consider. It should be factual and calm: describe the relationship, any lifetime help already given, and the needs of others you are providing for. Avoid insults or exaggeration, because the applicant can respond to every claim in it. It is not binding, but it means your perspective is before the court when you cannot give evidence yourself.

Use a life interest or right to reside for a second spouse

Blended families carry the highest risk, because a surviving spouse and children from an earlier relationship can have competing claims. A common structure is to give the surviving spouse security in the home for life, with the property then passing to all the children.

For the Does, that means first converting the home from joint tenants to tenants in common, so John's half can pass under his will. John's will then gives Jane a life interest or right to reside in his half, and on Jane's death his half passes equally to Mia, Leo and Sam. Jane keeps her home, and Sam knows he will share in his father's estate. The trade-off is that Jane is also an eligible person, and she may argue she needs capital rather than just a roof, so the terms must be realistic, including who pays outgoings and repairs, and a power to sell and buy a smaller home.

Consider a court-approved release

A family member can give up their right to make a claim, often in return for a gift or settlement. A private agreement alone is not binding. The release only works if the court approves it, which can happen during your lifetime or after your death. In deciding whether to approve it, the court looks at matters such as whether the terms are fair and reasonable and whether the person had independent legal advice. If Sam accepted a lump sum now in exchange for a release, John and Jane would gain certainty, but only once the court approves it.

Keep records of lifetime help

Money you have already given, such as a house deposit, school fees or a business loan, is relevant to what the court considers adequate. Keep records of what you gave, when, and whether it was a gift or a loan. An undocumented loan is easily argued to be a gift.

Avoid rigid control

Conditions such as "only if he finishes university" or "the house must never be sold" cannot adapt when circumstances change, and they tend to invite disputes rather than prevent them. A discretionary testamentary trust with a sensible trustee and a letter of wishes usually achieves your goals more flexibly.

Review the plan as life changes

A new partner, a separation or a change in a child's health can change who is likely to claim. Review your will and statement of reasons when your family changes. Our estate planning page explains how we review the whole picture, including super, jointly owned property and your business.

If you would like to talk through how these steps apply to your family, see our estate planning services or contact us to book a consultation. The family provision provisions of NSW law are available on the NSW legislation website.

This article is general information only, current as at October 2026, and is not legal, financial or tax advice. Estate planning, tax and Centrelink rules change over time and their effect depends on your circumstances. You should obtain advice specific to your situation before acting.