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Contesting a Will Lawyers — Family Provision Claims. Strict Time Limits Apply.
If you believe you have been inadequately provided for in a will — or from a deceased estate where there is no will — you may be entitled to make a family provision claim. Family provision legislation in each Australian state gives courts the power to make orders out of the estate regardless of the terms of the will. Time limits are strict — typically 12 months from the date of death. Get specialist advice immediately.
⚠ Strict time limits apply. In NSW and Victoria: 12 months from the date of death. In Queensland: 9 months from the date of death. In WA: 6 months from the date of the grant of probate. Extensions are rarely granted. Do not wait — get advice now.
What We Help With
Family provision claims — all eligible persons and circumstances.
Child Disinherited or Inadequately Provided For
Children — whether adult or minor, biological or adopted — are among the most commonly eligible persons to make a family provision claim. A lawyer assesses the strength of the claim having regard to the size of the estate, the claimant's financial position, and the reasons for the testator's decision to exclude or reduce their entitlement.
Spouse or De Facto Partner Inadequately Provided For
A surviving spouse or de facto partner who has been inadequately provided for in the will (or receives nothing under the intestacy rules) has strong grounds for a family provision claim. Courts generally regard maintenance of a surviving spouse's accustomed standard of living as a significant obligation of the estate.
Former Spouse — Claims in Appropriate Circumstances
A former spouse is an eligible person in most states where the testator was providing maintenance at the time of death or where there was a continuing obligation. The strength of a former spouse's claim depends heavily on the specific facts — including whether property settlement was resolved and the nature of any ongoing financial relationship.
Stepchildren & Other Eligible Persons
Stepchildren, grandchildren, and other persons who were dependent on the deceased at the time of death may be eligible in most states — subject to eligibility tests that vary by jurisdiction. A lawyer assesses whether the specific person is eligible in the relevant state and the strength of their claim on the merits.
Mediation & Estate Settlement
Most family provision claims settle before trial — often at mediation. A lawyer represents claimants and estates at mediation, negotiating a settlement that avoids the cost and delay of a contested court hearing. Estate mediation is confidential and often produces outcomes that both parties can accept.
Intestate Estates — No Valid Will
A family provision claim can be made against an intestate estate as well as an estate where a will exists. Where the intestacy rules do not provide adequately for a dependant or eligible person, a court can make orders for provision out of the estate beyond what the intestacy rules would otherwise deliver.
What the Law Says
Family provision legislation — how courts approach these claims.
Who is eligible to make a family provision claim?
Eligibility is defined by the family provision legislation in each state — and varies. In NSW (Succession Act 2006), eligible persons include: spouses (married and de facto); children (including adult children); former spouses where maintenance was being paid; grandchildren who were wholly or partially dependent; and persons living in a close personal relationship with the deceased at the time of death. Other states have different eligibility definitions — some narrower, some broader. A lawyer identifies whether the specific claimant is eligible in the relevant jurisdiction.
What do courts consider in a family provision claim?
Courts conduct a two-stage inquiry: (1) whether the testator failed to make adequate provision for the claimant's proper maintenance, education, and advancement in life; and (2) if so, what provision should be made. Relevant factors include: the claimant's financial position and needs; the size and composition of the estate; the nature of the relationship between the claimant and the testator; and the testator's reasons for not providing (or providing less) for the claimant. Courts consider the totality of the circumstances — there is no set formula.
Time limits — state by state
The time limit to file a family provision claim varies by state: NSW — 12 months from the date of death; Victoria — 6 months from the grant of probate (equivalent to approximately 12 months from death); Queensland — 9 months from the date of death; WA — 6 months from the grant of probate; SA — 6 months from the grant of probate; ACT — 12 months from the date of death. Extensions are available in limited circumstances — but courts require exceptional circumstances to extend the time limit. Do not delay.
Costs — who pays in a family provision claim?
In family provision proceedings, costs are at the court's discretion. The general rule that "costs follow the event" does not always apply — courts are reluctant to make adverse costs orders against unsuccessful claimants in genuine family provision cases. In practice, successful claimants typically recover their costs from the estate; unsuccessful claimants may be ordered to pay the estate's costs, or costs may be offset. Many wills lawyers offer conditional fee (no win, no fee) arrangements for family provision claims — a lawyer advises on costs options at the outset.
Notional estate — superannuation and other assets
In NSW (and some other states), courts have the power to treat certain assets that were transferred out of the estate before death — including superannuation death benefits and assets held in trust — as "notional estate" for the purpose of a family provision claim. This prevents estate planning from being used to deliberately defeat family provision claims. A lawyer advises whether notional estate orders are available in the specific case and what their practical effect would be on the claim.
Defending a family provision claim — executor's obligations
An executor who receives a family provision claim must respond to the court proceedings on behalf of the estate. The executor's role is to put before the court all relevant information about the estate, the relationship between the testator and the claimant, and the testator's reasons for their dispositions — rather than to advocate for or against the claim. A lawyer represents the estate as a neutral party and manages the proceedings efficiently to minimise costs to the estate.
How It Works
One request. A free family provision claim assessment.
Tell us your relationship to the deceased, what you received (or didn't receive) from the estate, and the approximate date of death. A wills and estates lawyer assesses your eligibility and prospects for free.
Submit Your RequestDescribe your relationship and circumstances
Tell us your relationship to the deceased (child, spouse, stepchild), the state where the deceased died, the approximate date of death, and what provision (if any) was made for you in the will.
Free eligibility and merits assessment
A wills and estates lawyer assesses your eligibility as an eligible person in the relevant state, the strength of the claim on the merits, and the realistic range of provision that courts would consider appropriate.
Claim filed, mediation, and settlement
If the claim has merit, a lawyer files within the time limit, manages the proceedings, and represents you at mediation. Most claims settle at mediation — avoiding the cost and delay of a contested hearing.
Common Questions
Contesting a will — frequently asked questions.
I was left out of my parent's will — can I contest it?
If you are an eligible person (which adult children generally are in all Australian states) and your parent failed to make adequate provision for your proper maintenance from the estate, you may have a family provision claim. The strength of the claim will depend on your financial position and needs, the size of the estate, your relationship with your parent, and whether there were reasons for the exclusion that the court would consider significant. A lawyer gives you a frank assessment of the strength of your claim and the realistic outcome at the first consultation.
I was my mother's carer for 10 years — does that help my claim?
Yes — the nature and quality of your relationship with the deceased is a significant factor in the court's assessment. Where a claimant has provided care, support, or services to the deceased that were not adequately compensated during the deceased's lifetime, courts take this into account as both: (1) evidence of the closeness of the relationship (weighing in favour of larger provision); and (2) a form of contribution to the estate (because the deceased did not need to pay for those services). A lawyer documents the care provided and presents it effectively in the proceedings.
The executor has already started distributing the estate — is it too late to make a claim?
Not necessarily — but act immediately. An executor who distributes the estate while on notice of a family provision claim (or while the time limit for making claims has not expired) can be personally liable to successful claimants for any distributions made prematurely. Courts can also make orders requiring beneficiaries to contribute to a successful family provision award out of the distributions they have already received. Contact a lawyer urgently to preserve your position — and consider writing to the executor immediately to put them on notice of your potential claim.