Expanding the Use of Family Provisions in NSW

Family provisions are a useful mechanism for family members and loved ones who feel dissatisfied or neglected with the distribution of a deceased individual’s estate. These claims can be brought on if an individual died intestate (which means there was not a valid will) or as a contestation to an existing written will. In fact, family provision claims are the most common type of contestation to a written will. Interestingly enough, data since 2014 shows that family members and friends are much more likely to file for a family provision claim when there is a written will in existence, as opposed to when the individual in question is intestate.

Courts Are Seeing More Claims

Legal trends also indicate that more and more family provision claims are being initiated each year. The number of cases in New South Wales (NSW) mirrors this national trend. The increased number of claims likely has something to do with the court decisions regarding family provisions in recent years. Recently, the provisions awarded to applicants by the court have been very favourable.

Balance of Interests

A family provision claim NSW was created as the legal mechanism to ensure that all loved ones are fairly and adequately provided for within a deceased individual’s will. When considering adequacy, some of the stipulations include whether the applicant was dependent on the deceased, whether the applicant provided for or enhanced the welfare of the deceased, and the applicant’s current financial circumstances as well.


These interests are balanced against a testator’s right to leave his or her estate to certain individuals or charities. A will is the document that best speaks for the deceased’s intentions. A court is then given the power to look at these competing interests and determine whether the provisions of the will were adequate enough to support the applicant.

Expanding the Definition of Eligible Individuals

Initially, individuals who were successful in bringing family law claims were the direct descendants of the deceased or very close family members. Given the nature and wording of the law, these types of relatives seemed to be the ideal applicants for seeking additional inheritance under a family law provision. But over time, the diversity has changed, and the courts in NSW have provided provisions to a broader range of individuals.

NSW courts have allowed adult children, past partners, and grandchildren to successfully file for family provision claims. These court decisions expand the definition of an eligible person for family provisions under the law, and encourage other dependents to test the limits of their inheritance as well. These tertiary dependents are now able to more easily find out whether they were entitled to additional assets from the estate. These more lenient court decisions are not just occurring in NSW, but also across the states of Australia as well.

What These Decisions Mean for Wills

The court’s reading and implementation of family provisions affects more than just how the court interprets this legal document. At an earlier stage, these provisions were constantly changing and influencing how a will was to be drafted. As well, the broad application of family law provisions means that certain individuals should probably consider alternative distribution of assets, other than through testamentary means. These other forms of distribution may include the creation of a trust or giving generous gifts to charities or individuals of choice while living.

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Jovany Maxwell