What does the Court look at in determining a family provision claim?

Jun 9, 2023 | Publication

A family provision claim is a claim brought by a person against the estate of a deceased person seeking, in effect, an entitlement from the estate.  This may arise because the person has been ignored or overlooked by the deceased or arguably insufficient provision has been made.

In deciding whether or not to grant a family provision order, the Court first looks at whether the person is an ‘eligible person’ as defined by the Succession Act.

Examples of an ‘eligible person’ include a spouse or child of the deceased.

The Court will consider when deciding whether to make a family provision order such matters as:

  1. Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;
  2. The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a  family provision order or to any beneficiary of the deceased person’s estate;
  3. the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered;
  4. the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate;
  5. if the applicant is cohabiting with another person—the financial circumstances of the other person;
  6. any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated;
  7. the age of the applicant when the application is being considered;
  8. any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant;
  9. any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate;
  10. any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person;
  11. whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so;
  12. whether any other person is liable to support the applicant;
  13. the character and conduct of the applicant before and after the date of the death of the deceased person;
  14. the conduct of any other person before and after the date of the death of the deceased person;
  15. any relevant Aboriginal or Torres Strait Islander customary law;
  16. any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

How does the court assess pain and suffering?

In New South Wales (NSW), the assessment of pain and suffering—referred to legally as non-economic loss—is governed by the Civil Liability Act 2002 (NSW) ("CLA"). This is compensation for the intangible effects of the injury, such as pain and suffering, loss of...

Property Disputes – How Can They Arise?

Property disputes arise in many different ways – not only in commercial contexts but also in residential settings.  Some of the types of property disputes include:...

Can a Child under 14 years commit a Crime?

In New South Wales, the age of criminal responsibility is 10 years old.  A child under 10 cannot be charged with a criminal offence. For children aged 10 to under 14, there is a legal presumption known as doli incapax, which assumes the child is incapable of...

Why is it important to know who your client is?

In a range of contexts, it is important to know who your client is. In most professional service contexts, the identity of the client is the starting point to providing advice.  If it is not clear who the professional advisor is advising, this can cause issues as...

Mental Harm Damages Following Birth Trauma: Lessons from Sorbello

In South Western Sydney Local Health District v Sorbello [2024] NSWCA 14, the New South Wales Court of Appeal has provided timely guidance on two important issues in personal injury litigation: how courts choose between competing expert opinions on mental harm, and...

Damages for Defamation – Newman v Whittington [2025] NSWSC 275

A family dispute resolution practitioner was awarded $150,000 in aggravated damages, $10,000 in interest, and an injunction in a recent Supreme Court of New South Wales case. The defendant posted defamatory statements about the plaintiff on WordPress, Facebook, and...

Review Panel Determines Right Hand Injury as Non-Threshold Injury

The Personal Injury Commission (PIC) has ruled in Tasseli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 49 that damage to pre-existing surgical hardware constitutes a non-threshold injury, entitling the Claimant to ongoing statutory benefits and...

What are 5 legal requirements for a business?

When a new business is set up, there are various legal aspects which should be considered.  Some are more important than others in the early stages.  Obviously the nature of the business will dictate more specific legal requirements. We set out below some...

Court Dismisses Group Proceeding

A significant class action against Waller Legal Pty Ltd has been halted after the Supreme Court of Victoria ruled that the proceeding should no longer continue as a group proceeding. The case, Jane Jones (a pseudonym) v Waller Legal Pty Ltd [2025] VSC 42, involved...