Family provision – who is eligible to claim from a deceased estate?

Left out of a will or seeking more –  who can apply for provision?

The legislation gives the court¹ discretionary power to order provision from a deceased person’s estate, where found to be inadequate, to “eligible” applicants, under certain circumstances. It is not automatic.

The categories of who can apply for provision out of a deceased estate have since expanded to include other dependents as the family provision legislation defines.

Any contest for further provision from a deceased’s will or under the law of intestacy (if no will), begins with the court determining an applicant’s eligibility under the family provision rules.

Willmakers behaving badly – why the legislation was introduced

The introduction of this legislation, first in New Zealand in 1900 then progressively in Australia, was a response to the occurrence of willmakers not leaving adequate provision for the proper maintenance and support of their spouse and children.   The basic underlying policy was that spouses, usually wives, and children made significant contributions to the accumulation of assets and that they should be left provided for.

The statues

The various state and territory family provision or testator’s family maintenance statutes can be found by following the links under the Family Provision column of the Legislation Table here.

In NSW the legal rules on family provision from deceased estates are found in Chapter 3 of the Succession Act 2006 (NSW).   Who can apply is considered below.

Only an “eligible person” may apply for family provision

From court records the main types of applicants continue to be the spouses, partners, and children of the deceased.  Children can now be grandchildren and sometimes stepchildren.

Family provision law provides for anyone within the definition of an “eligible person” to apply to the court for a family provision order from the estate of deceased person.  The court has to be satisfied first that an applicant is an “eligible person”, as defined in the law.

The provisions for eligibility in NSW are set out under section 57 of the Succession Act 2006 (NSW), click here.   It sets out a number of categories.  The other states and territories may do this differently.

The various categories of “eligible persons” are:

• spouses of the deceased at the time of death;
• a person in a de facto relationship at the time of death.  A de facto relationship is defined in other legislation, see the Interpretation Act 1987 (NSW); 
• a child of the deceased;
• a former spouse of the deceased;
• someone wholly or partly dependent on the deceased at any particular time AND a grandchild, or a member of the deceased’s household;
• a person who was in a close personal relationship with the deceased at the time of death.
• a reference to a child in the case of de facto or domestic relationships, (and where it becomes complicated), where a domestic relationship means that in the Property (Relationships) Act 1984 at the time of death includes:
  • a child born of that relationship;>
  • a child adopted by both parties to that relationship;
  • in de facto relationships two further categories as described;
  • a child for whom both have long-term parental responsibility as defined under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

How can children and incapacitated adults apply?

Children or persons under 18 don’t have legal capacity, nor do some others.  If they are “eligible”, they may apply by a tutor.  A tutor is a person appointed by them, or their guardians, (or sometimes by court order) to make the application to the court on their behalf.   The legal authority for tutors is found in the Civil Procedure Act 2005 (NSW).  Other jurisdictions have similar arrangements.

Who is a “domestic partner” in family provision?

Some jurisdictions refer to a “domestic partner”.  This is a developing area and its meaning is not always clear.  It can be said that the domestic partner must have been in a continuous relationship with the deceased for a period of time and running up to immediately before the deceased’s death.  Just how long can vary, and depend on the circumstances of the case, it might be five years as in SA, or two for others.

When can the court make a family provision order and what factors must it consider?

The legal rules set out the circumstances and criteria for when the court can make a family provision order with a long list of matters the court must consider and the form any provision will take. This is quite involved and may be considered in a future series of articles.

Unreasonable litigation

Just because someone was in a particular relationship with a deceased person and so “eligible”, does not mean their application will be successful, as the cases show.  The court is required to examine a number of factors and circumstances.  In situations where an “eligible person” was well provided for by the deceased’s during his/her lifetime, does not automatically mean their application for more will succeed.

As the Supreme Court of New South Wales said in one case²:

Importantly, … it should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person’s estate. Nor does it impose any limitation on the deceased’s power of disposition by his, or her, will.

It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter the deceased’s disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court’s power to do so is discretionary.² (Emphasis added)

It should also be noted that the court has wide power in deciding who pays the costs of  proceedings.

Thinking about providing for family, children, dependents and relationships generally is difficult in a litigious era. What is “adequate”?  Legal advice should be obtained from experienced practitioners in this area of law.

1.  A reference to the “court” means to the respective Supreme Court in each jurisdiction, being the court dealing with these types of matters.
2. Estate of  Kallidis; Kallidis  v  Kallidis, [2012] NSWSC 1485, per Hallen J. at 165.

BHS Legal
Updated 1 May 2021