Family Provision Claims
Applications for further provision from a deceased estate, run for adult children, spouses, de facto partners and dependants where the estate is substantial and the stakes justify a specialist commercial-litigation approach.
What is a family provision claim?
A family provision claim is a court application by an eligible person for further provision from a deceased estate on the ground that the deceased failed to make adequate provision for that person's proper maintenance, education, or advancement in life.
Family provision legislation exists in every Australian state and territory. The legislation is different in each jurisdiction, the time limits are different, and the list of who counts as an "eligible person" is different, but the underlying principle is consistent: a court can override the terms of a will (or the intestacy rules) where it considers that the deceased failed to properly provide for someone the deceased had a moral obligation to provide for.
Family provision is different from challenging the validity of a will. In a family provision claim, the applicant accepts the will exists and is valid. The claim is that the will does not properly provide for the applicant, and the court should order additional provision from the estate. For challenges to the will itself (lack of testamentary capacity, undue influence, fraud, improper execution), see Challenging the Validity of a Will.
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Where Aptum runs family provision claims
Family provision is a broad category. The claims that suit Aptum's practice are those where the estate value, the family structure, or the underlying assets take the matter beyond a routine contest.
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01
Adult child claims against substantial estates
Adult children (biological, adopted, and in some jurisdictions step-children) making claims where the estate size, the applicant's needs, and the competing claimants justify formal proceedings.
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02
Spouse and de facto partner claims
Surviving spouses and de facto partners who have been inadequately provided for, or where the will attempts to direct assets away from the surviving partner in ways that don't reflect the length or contribution of the relationship.
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03
Blended family claims
Second and third marriages, half-siblings, step-children, and long-term partners from later relationships. Blended families are one of the most common patterns behind contested estates in Australia today, and the claims are often multi-party.
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04
Farming and family business succession claims
Claims by adult children who worked in the family farm or family business for years or decades on the expectation of inheritance, where the will does not reflect that contribution. These matters usually intersect with equitable estoppel and constructive trust arguments as well as the family provision framework.
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05
Claims involving family trusts
Where the deceased's wealth is held in a family discretionary trust rather than in their personal estate, the family provision claim is technically limited to the personal estate. But designation orders, notional estate provisions (NSW), and challenges to the trust structure itself can bring trust assets into the analysis. See Complex Trust and Estate Asset Disputes for the trust-side work.
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06
Estranged child claims
Claims by adult children who had a limited or estranged relationship with the deceased. These are more difficult than claims by close family members, but they can still succeed where the estate is substantial and the applicant's financial need is real.
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07
Grandchild and other dependant claims
Dependants who were being wholly or partly maintained by the deceased at the time of death, in the jurisdictions that recognise this category.
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08
Defending family provision claims
Aptum also acts for executors and beneficiaries defending family provision claims against an estate, particularly where the estate is substantial and the executor needs commercial-litigation discipline to run the defence.
Who is eligible to claim
The eligible-person definition is different in every state. The table below is a summary; the actual definition in your state is what governs.
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Victoria
Spousede facto partnerformer spouse (limited)childstep-childgrandchild in some circumstancesregistered caring partner
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New South Wales
Spousede facto partnerchildformer spouseperson wholly or partly dependent on the deceased who was a member of the householdgrandchild in dependent household
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Queensland
Spouse (including de facto)child (including step-child in some circumstances)dependant
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South Australia
Spousede facto partnerformer spousechildgrandchildparentsibling in some circumstances
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Western Australia
Spousede facto partnerformer spousechildgrandchildparentstep-child in some circumstances
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Tasmania
Spousede facto partnerformer spousechildparent
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Australian Capital Territory
Spousede facto partnerformer spousechildstep-childgrandchildparent
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Northern Territory
Spousede facto partnerformer spousechildstep-childgrandchildparent
The eligibility question is technical
Standing to bring a family provision claim can turn on questions like whether a de facto relationship existed at the time of death, whether a step-child was being maintained, whether a former spouse's status was preserved by property settlement, and whether a grandchild was living in the deceased's household. Aptum resolves the eligibility question at the value conversation stage.
Time limits in family provision claims
Family provision claim windows are among the strictest limitation periods in Australian civil law. The windows below run from the grant of probate or letters of administration (not from the date of death), except where noted.
from grant
Administration and Probate Act 1958 (Vic), Part IV
from date of death
Succession Act 2006 (NSW), Chapter 3
from date of death · notice within 6 months
Succession Act 1981 (Qld), Part 4
from grant
Inheritance (Family Provision) Act 1972 (SA)
from grant
Family Provision Act 1972 (WA)
from grant
Testator's Family Maintenance Act 1912 (Tas)
from grant
Family Provision Act 1969 (ACT)
from grant
Family Provision Act 1970 (NT)
Out-of-time applications
Every jurisdiction has provisions allowing out-of-time applications in limited circumstances, but the discretion is applied narrowly. Waiting past the limitation date almost always weakens the claim, sometimes fatally.
Practical rule
If a will has been read and you're considering a claim, book the value conversation this week, not next month. The time-limit calculus is the single most important early-stage question in a family provision matter.
What the court considers
Under the family provision legislation in every state, the court considers a range of factors when deciding whether adequate provision has been made and (if not) what further provision should be ordered. The exact statutory list varies by state but usually includes:
- The financial resources and financial needs of the applicant (now and reasonably foreseeable in the future)
- The size of the estate and the ability of the estate to satisfy the claim
- The claims of any other beneficiaries and any other applicants
- The nature and length of the relationship between the applicant and the deceased
- The contribution of the applicant to the deceased's welfare or to the estate
- Any disability, disadvantage, or health issues affecting the applicant
- The character and conduct of the applicant
- The testator's reasons for making (or not making) provision as recorded in the will or a statement
- Any provision made for the applicant by the deceased during their lifetime
In practice the two factors that carry the most weight in most matters are: (a) the applicant's financial need relative to the size of the estate, and (b) the strength of the moral claim based on the relationship. The other factors calibrate the outcome once those two are established.
How Aptum runs a family provision matter
Value conversation
A no-cost first meeting where you tell us what happened, what the estate looks like, and what outcome you want. We tell you whether the claim is realistic on your facts, what the time limit is, and what the likely pathway is. No sales pitch, no obligation.
Pathways assessment
If the claim is realistic and you want to move forward, we scope the matter properly, identify the eligible-person analysis, gather the evidence needed on financial need and relationship, and give you a costed engagement plan with a clear budget for each phase.
Execution
We run the matter. Formal notice to the executor, negotiation, court application if needed, mediation, and hearing where the matter does not settle. We report to you throughout, and we do not run costs up beyond what the matter warrants.
How a family provision claim actually moves
Five stages, run with commercial-litigation discipline. Most matters resolve well before a hearing.
Evidence gathering
Financial position of the applicant (assets, liabilities, income, expenses, dependants, health, capacity to work), relationship history with the deceased, contributions to the estate or to the deceased's welfare, competing claimants. This is the foundation of the case. Weak evidence at this stage is the single most common reason claims fail or settle poorly.
Formal notice
Letter of demand to the executor setting out the claim. Most matters produce a substantive response and open a negotiation window at this point. Statistically, more family provision matters resolve in this stage than in any other.
Court application
Where the matter does not resolve informally, an originating process is filed in the state Supreme Court (in Victoria, usually in the Trusts, Equity and Probate List). The executor files a defence, and the parties exchange affidavit evidence.
Mediation
The court almost always orders mediation before hearing. Most family provision matters that reach the court settle at or shortly after mediation. Mediation outcomes are almost always a payment from the estate to the applicant, sometimes with a formal release.
Hearing
Where the matter does not resolve at mediation, the court hears the evidence and decides whether adequate provision was made and, if not, what further provision to order. The court can order lump sum payments, ongoing periodic payments, transfer of specific assets, or (occasionally) a life interest.
Cost implications
Family provision cost orders are unusual by civil-litigation standards. Costs can be ordered out of the estate where the applicant is unsuccessful but the claim was reasonable, which is different from the standard costs-follow-the-event rule. This is a significant consideration in the risk analysis.
The Aptum family provision team
Michael Buscema
Michael Buscema spent 11 years with the ATO and Commonwealth Treasury, including as acting Assistant Commissioner, before joining Aptum as a practice lead. He acts for private wealthy groups and families in complex, high-value disputes, and has negotiated settlement and security arrangements totalling over $1 billion.
Estate disputes over substantial asset pools are rarely just about the will — trust structures, superannuation and tax consequences run through them, and Michael brings senior experience on exactly those fronts.
Nigel Evans
Nigel Evans, Aptum's Managing Director and Co-Founder, leads Aptum's estates practice. Before founding Aptum, Nigel spent 11 years at the commercial Victorian Bar, where much of his practice touched on trust structures, fiduciary breach and equitable remedies. He is listed in Best Lawyers in Australia for Commercial Litigation (2026) and recognised by Doyle's Guide as a Leading Commercial Litigation and Dispute Resolution Lawyer.
An accomplished farmer has his property protected in a family trusts dispute
The complex end of the family provision practice often intersects with family trust and family business succession disputes. The pattern below is one Aptum sees regularly.
Our client was a farmer who had spent approximately 60 years prior to the dispute establishing and developing numerous farms that had grown to a combined value of more than AUD $15M. The properties were held in a property trust, of which our client's son and daughter-in-law were named beneficiaries. When the son and daughter-in-law separated, the daughter-in-law sought a 50% distribution from the trust on the basis that the couple were entitled to 100% of the trust between them, ignoring our client's interest and significant contribution.
Aptum intervened in the proceedings on our client's behalf to protect his interest in the trust. A negotiated outcome was achieved prior to trial that properly recognised and protected his interest in the property.
What's changing in Australian family provision law
The intergenerational wealth transfer is producing more claims
As Baby Boomer estates move into administration, the volume of family provision claims has grown substantially since 2020. Blended families and second-marriage estates are a significant driver.
Notional estate orders in NSW are being tested more
NSW is the only state with notional estate provisions that can pull assets back into the estate from non-estate transfers made during the deceased's lifetime. These orders are being tested in matters involving family trusts, joint tenancies, and superannuation, and the case law is developing quickly.
Estranged adult child claims are being decided more carefully
Courts in every state are working through the balance between the deceased's testamentary freedom and the moral claim of estranged adult children. The trend is a more nuanced approach than the strict outcomes of a decade ago, particularly where the estate is substantial.
Costs orders are tightening in some jurisdictions
Historically, family provision costs were routinely paid from the estate regardless of outcome. Several state Supreme Courts have signalled they are less willing to make orders that eat into the estate where the claim was weak.
Frequently asked questions
Straight answers to the questions applicants and executors ask most.
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Who can bring a family provision claim in Australia?
Eligibility varies by state but generally includes spouses (married and de facto), children (biological, adopted, and in some states step-children), former spouses in limited circumstances, and people who were being financially maintained by the deceased. The exact definition of "eligible person" is set by the state family provision legislation and needs to be checked against your specific circumstances.
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What is "adequate provision"?
The court asks whether the deceased made adequate provision for the applicant's proper maintenance, education or advancement in life. It is a two-stage question: did the deceased fail to make adequate provision, and if so, what further provision should be ordered. The court considers the applicant's financial need, the size of the estate, the relationship, and competing claims.
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How long do I have to bring a family provision claim?
The time limits are strict and vary by state: 6 months in Victoria and SA from grant of probate, 12 months in NSW and NT from date of death, 9 months in Queensland from date of death (with notice within 6 months), 3 months in Tasmania. Out-of-time applications are possible but the discretion is narrow.
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What factors does the court consider?
Financial resources and needs of the applicant, size of the estate, claims of other beneficiaries, nature and length of the relationship with the deceased, contribution of the applicant to the estate or to the deceased's welfare, any disability or disadvantage, the deceased's reasons for making (or not making) provision, and any provision made during the deceased's lifetime.
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Can I bring a claim if I was estranged from the deceased?
Yes, but estrangement makes the claim harder. Courts do consider the strength of the moral claim, and long-term estrangement without a good explanation weakens it. Estranged adult child claims can still succeed where the estate is substantial and the applicant's financial need is real, but the analysis is more nuanced than for close family members.
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Can step-children make a family provision claim?
It depends on the state. Some states expressly include step-children as eligible persons; others include them only if they were being maintained by the deceased at the time of death. The definitions differ enough that a state-specific check is essential.
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What happens if I miss the time limit?
The application is out of time and requires the court's discretion to extend. Courts are cautious about extending, particularly where the estate has been distributed. The prospects of an out-of-time extension usually depend on why the delay occurred and whether the estate can still meet the claim. The safe practice is to comply with the time limit.
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Do family provision claims usually settle or go to hearing?
Most family provision matters settle. Statistically, the largest proportion settle at or shortly after court-ordered mediation. A smaller number resolve informally before proceedings are filed. A minority go to full contested hearing. Settlement is usually a payment from the estate to the applicant with a release.
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Who pays the legal costs?
Family provision cost orders are unusual by civil-litigation standards. Costs can be ordered out of the estate even where the applicant is unsuccessful, provided the claim was reasonable. Successful applicants typically have their costs paid from the estate. Cost outcomes have been tightening in recent years, particularly for weak claims.
Thinking on family provision claims
Aptum publishes regularly on the questions that decide family provision claims matters.
Get clarity on your family provision matter
Family provision claim windows close 3 to 12 months after grant of probate depending on the state. Waiting past the limitation date almost always weakens the claim, and in most jurisdictions it kills the claim outright. If you're considering a family provision claim, or you're an executor being threatened with one, book the value conversation this week.
Book your value conversation