What Is Adequate Provision in Wills and Estates?

When someone passes away in New South Wales, they usually leave a Will that sets out how their assets known as their estate should be distributed. However, there are times when a Will does not make proper provision for someone who may be reliant on the deceased for financial or emotional support.

In such cases, the law in NSW allows certain people to make a family provision claim. This allows the Court to consider whether the Will made “adequate provision” for that person and if not, to make an order for further provision from the estate.

What Does “Adequate Provision” Actually Mean?

In simple terms, adequate provision means that the Will should have provided for an eligible applicant’s maintenance, education or advancement in life.

It does not mean that everyone is entitled to an equal share of the estate, or that every relative has a right to lodge a claim. However, if someone who was close to or financially dependent on the deceased is not adequately provided for, the Court may intervene.

What the Law Says:

Succession Act 2006 (NSW) – Section 59(1):

“If the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life of an eligible person has not been made by the Will of a deceased person, the Court may, in its discretion, order that such provision as the Court thinks fit be made out of the estate…”

In short, the Court has the power to adjust the distribution of the estate to make things fairer but only for people who qualify as an eligible person.

Who Can Make a Family Provision Claim?

Only certain people known as eligible persons can apply to the Court to challenge a Will. This is defined in Section 57 of the Succession Act 2006 (NSW).

Eligible persons include:

• A spouse (a husband or wife at the time of death)
• A de facto partner
• A child (including adopted children)
• A former married spouse
• A grandchild or other person who was financially dependent on the deceased and lived in the same household
• A person who was in a close personal relationship with the deceased at the time of death (for example, a long-term unpaid carer living with the deceased)

If you fall into one of these categories and believe you were unfairly left out or under provided for, you may be able to make a claim.

What Does the Court Consider When Deciding a Claim?

The Court does not grant claims simply because someone feels they were treated unfairly. Instead, the Court carefully considers whether adequate provision was made and, if not, what amount or share would be fair under the circumstances.

These considerations are set out in Section 60 of the Succession Act 2006 (NSW).

Some of the key factors the Court takes into account include:

• The nature and quality of your relationship with the deceased
• Your current financial position, including income, debts and future needs
• Your age, health, and any disabilities
• The size and nature of the estate
• Whether you were financially dependent on the deceased
• Whether the deceased had a moral duty to provide for you
• Whether you made any contributions (financial or otherwise) to the deceased or their estate
• The financial needs and rights of other beneficiaries
• Any written or verbal intentions expressed by the deceased

The Law: Section 60(2) – Matters to Be Considered

Here is a direct extract from the legislation:

“The Court may have regard to the following matters: the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant; the financial needs, both present and future, of the applicant; the nature and extent of the deceased person’s estate; any contribution (financial or otherwise) by the applicant to the estate or welfare of the deceased person; and any other matter the Court considers relevant.”

Every case is assessed on its own facts. For example, a wealthy adult child with no need for financial support may receive nothing, while a dependent carer or financially struggling relative may be granted a significant share.

Is There a Time Limit to Make a Claim?

You must file your family provision claim within 12 months of the deceased person’s death unless all the parties to the proceedings consent to your late application. Alternatively, the Court may allow your claim after 12 months in exceptional circumstances.

Section 58(2) – Succession Act 2006 (NSW):

“An application must be made not later than 12 months after the date of the death of the deceased person except with the leave of the Court.”

The Court may allow a claim to proceed after the deadline but only if there is a very good reason (e.g. the applicant was unaware of the death or suffered serious illness).

Lodging a family provision claim is never a step taken lightly. However, the law in New South Wales recognises that there are situations where someone should have been provided for and wasn’t. A family provision claim can help correct that.

If you’re a spouse, child, or dependent who has been left out of a Will or received an insufficient share, you may have rights under the Succession Act 2006 (NSW). These matters are often emotionally and legally complex, and early legal advice is strongly suggested.

Contact us for a free thirty-minute consultation with Will dispute lawyer.

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Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.