Family provision claims explained

What a family provision claim means in Australia

A family provision claim, also known as an estate provision claim or inheritance claim, is a legal action that allows certain people to seek financial support from a deceased person's estate. Even when a will exists, Australian law recognises that some people may have been left without adequate financial support and may be entitled to make a claim against the estate.

Family provision claims exist because Australian succession law balances the deceased's freedom to distribute their assets with the legal obligations they may have owed to dependants and family members. When a person dies, their will or the rules of intestacy determine who receives what. However, the law acknowledges that a will may not always provide fairly for those who were financially dependent on the deceased or who had a moral obligation to be supported.

To bring a family provision claim, a person generally needs to be considered an 'eligible person' under the relevant succession legislation. This typically includes spouses, children, grandchildren, parents, and sometimes other dependants. The eligibility requirements vary slightly by state and territory in Australia, and whether a person meets these criteria depends on the circumstances.

When someone initiates an inheritance claim, they must demonstrate that the provision made for them in the will, or under intestacy rules, is inadequate for their proper maintenance, education, or advancement. This requires evidence of financial need and of any relationship or dependency with the deceased.

Key points

• A family provision claim allows eligible people to seek additional financial support from an estate.

• The claim challenges the adequacy of provision made under a will or intestacy rules.

• Eligibility requirements determine who can make a claim.

• Successful claims can result in a court order for additional provision from the estate.

• Time limits apply, and these are connected to particular stages of proceedings.

• State and territory laws differ, so the specific requirements depend on where the deceased lived.

Common situations

You might consider making a family provision claim if:

• You were financially dependent on the deceased before their death.

• You've been left out of a will entirely or with minimal provision.

• You are a child and believe you haven't been adequately provided for.

• You are an adult child with a disability or long-term illness requiring financial support.

• You are an estranged spouse who believes you should receive provision from the estate.

• You were in a de facto relationship with the deceased.

• You were caring for the deceased and believe this should be recognised in the estate.

• You're a grandchild who was being raised or supported by the deceased.

• The deceased promised to provide for you, but the will doesn't reflect this.

Where a claim is not lodged within applicable time limits, the ability to pursue it may be affected. In some circumstances people become aware of their eligibility only after the relevant period has passed. Similarly, if an estate is distributed without knowledge of a potential claim, disputes and delays can occur when the claim is later discovered, sometimes requiring estate assets to be recovered from beneficiaries.

What to consider

• Do you meet the legal definition of an eligible person?

• What was your financial relationship with the deceased?

• Were you dependent on them for accommodation, education, or living expenses?

• How much was left to you in the will, if anything?

• What are the time limits in your state or territory? (These are usually short, often 6 to 12 months from the date of death.)

• Do you have evidence of financial need and dependency?

• Could estate distribution occur before your claim is formalised?

• Would alternative dispute resolution or negotiation be faster than court proceedings?

What you can do next and how LawConnect can help

If you believe you have grounds for a family provision claim, you may wish to:

1. Gather the deceased's will and any documents showing the estate distribution.

2. People often document their financial situation, including income, expenses, and any assets they own.

3. People often collect evidence of their relationship with the deceased and any financial dependency.

4. People often look into the relevant state or territory succession laws regarding eligibility status.

5. People often look into the time limit for lodging a claim in the relevant jurisdiction.

6. People sometimes consider whether the disputed will or intestacy rules create additional complexity.

7. People sometimes explore whether negotiation with the executor or other beneficiaries might resolve the matter.

8. People often obtain professional guidance at stages connected to the relevant proceedings.

How LawConnect can help

Family provision claims can feel daunting, especially when you're grieving and facing strict time limits. Many people need clarity about their legal eligibility and options before deciding how to proceed.

LawConnect provides personalised legal information through our AI legal assistant. Information tailored to a person's situation can be obtained through the questions above. The AI can help you understand the general eligibility requirements, the estate distribution process, and the range of options available to you.

However, only a licensed lawyer can provide legal advice specific to your individual circumstances, review your evidence, and advise on the strength of your claim or the best path forward. If you decide you'd like professional support, we can connect you with experienced succession lawyers who specialise in family provision claims and can provide tailored legal advice.

Gathering information at stages connected to the relevant proceedings is something people often do.