Updated 25 October 2026
You can generally choose who inherits under your will, including a partner, children, friends or charities. In NSW, however, testamentary freedom operates alongside legislation allowing certain people to seek further provision from an estate. Neither freedom of choice nor a family relationship guarantees the outcome of a dispute.
At CM Lawyers, my advice is to consider your wishes and the people affected by them together. Clear drafting matters, but so do financial circumstances, family responsibilities and the evidence supporting your decisions. This article addresses NSW law; succession rules differ across Australian states and territories.
What a family provision claim actually involves
Under Chapter 3 of the Succession Act 2006 NSW, an eligible person may apply for provision from a deceased estate. Being disappointed with an inheritance is not enough. The court applies the statutory test concerning adequate provision for the applicant’s proper maintenance, education or advancement in life.
A family provision claim differs from a challenge to a will’s validity. An applicant can accept that a will was validly made yet seek further provision. A validity dispute instead concerns matters such as execution, testamentary capacity or undue influence. It is important to identify the legal issue before gathering evidence or making allegations.
Who can apply and when
Eligible people include a spouse or de facto partner at death, a child and a former spouse. Other categories include certain grandchildren or household members who were wholly or partly dependent on the deceased, and people who were living in a qualifying close personal relationship with the deceased at the time of death. The precise statutory requirements matter; being a grandchild or stepchild alone does not automatically establish eligibility.
An adult child does not have to establish dependency to qualify as a child. Eligibility nevertheless differs from entitlement to an order. Some other categories of applicants must also establish factors warranting an application. Legal Aid NSW explains the usual deadline: proceedings must generally be commenced within 12 months of death. Exceptions exist, but applicants should obtain advice promptly. They need not wait for probate to be granted.
How the court assesses adequate provision
Section 59 requires the court to assess adequacy in the circumstances existing when it considers the application. Section 60 identifies relevant matters, including financial resources and future needs, age, disability, relationships, the deceased’s responsibilities, estate assets and liabilities, contributions and earlier gifts. The circumstances of other beneficiaries also matter.
This is not a general power to divide an estate equally or substitute whatever arrangement seems fairest. A financially secure child may have a very different claim from a child facing serious disability and limited resources. Neither situation should be reduced to a guaranteed result. The estate available and the competing responsibilities must be assessed together.
Estrangement and moral duty need context
A long estrangement does not automatically disqualify a child, and it does not automatically excuse every decision to exclude them. Relevant evidence may include the history of the relationship, responsibility for the breakdown, attempts at reconciliation, earlier assistance and the parties’ conduct. A court examines the circumstances rather than simply counting years without contact.
As Justice Lindsay’s explanation of the family provision jurisdiction emphasises, concepts such as moral duty cannot replace the statutory criteria. Parents are not subject to a blanket rule requiring equal gifts to children. Equally, a statement that someone deserves nothing does not determine whether the law permits further provision.
A real decision on testamentary freedom
In Steinmetz v Shannon [2019] NSWCA 114, the NSW Court of Appeal considered a widow’s claim against her husband’s estate. His will provided an indexed annual payment for her, with the remaining estate passing to his children from an earlier marriage. The Court allowed her appeal and replaced the annuity with a $1.75 million legacy.
The reasoning considered their lengthy relationship, her care for him, the available estate and her independence. Provision through continuing payments payable by the children raised concerns beyond whether immediate living expenses could be met. The case demonstrates why the form of provision can matter as much as its value. It concerns a widow, not an estranged child, and establishes no universal entitlement to a particular amount or percentage.
Record reasons carefully and factually
When a client wants to exclude someone or make unequal gifts, I recommend discussing the reasons privately with the solicitor and recording relevant facts. Useful information includes earlier financial assistance, loans, care arrangements, the needs of different beneficiaries and the history of an estrangement. Dates, documents and specific events are more useful than broad accusations.
Reasons may be recorded in a separate statement, sometimes a statutory declaration, alongside appropriate solicitor file notes. Sections 60 and 100 address consideration of the deceased’s intentions and evidence of statements. Signing a declaration does not make disputed allegations true, compel the court to accept them or prevent a claim. The wording and supporting evidence need care.
The will must still clearly identify beneficiaries, gifts, the residue and substitutes if a beneficiary cannot inherit. Review the plan when relationships or finances change. A carefully recorded decision made years earlier may no longer address the circumstances that exist at death.
Bring an asset and liability list to the appointment, together with details of significant gifts already made and any ongoing support commitments. Explain whether a proposed gift is intended to provide housing, regular income or independent control of capital. Those objectives may require different drafting. In a blended family, for example, a wish to support a surviving partner while preserving an inheritance for children needs practical discussion about accommodation, expenses and future changes.
Assets outside the will are not automatically protected
Jointly owned property, superannuation and trust arrangements need separate examination because the will does not necessarily control their distribution. However, it is unsafe to assume that putting an asset outside the estate prevents a NSW family provision claim. Part 3.3 of the Succession Act contains notional estate provisions that can, when their conditions are met, bring certain property outside the actual estate within reach of an order.
The ownership structure, relevant transactions, timing and statutory requirements all matter. These rules do not mean every trust or jointly owned asset is automatically available. Obtain advice before restructuring assets to exclude someone. Similarly, a private promise not to claim is not a reliable substitute for advice: section 95 requires court approval for a release of family provision rights to be effective.
Evidence mediation and costs
Family provision proceedings are civil estate litigation in the Supreme Court of NSW. Under Practice Note SC EQ 7, the parties provide evidence about the claim, estate and relevant circumstances. Unless otherwise ordered, proceedings are referred to mediation at the earliest practicable time. If agreement cannot be reached, the court may determine the claim.
Financial records, medical evidence and documents about family relationships may be relevant. Subpoenas are subject to court control; in this list they must not be issued without leave of the Registrar in Probate. They are not an automatic entitlement to obtain every document someone wishes to inspect. The evidence sought should address an issue in the proceeding.
Legal costs are another reason to assess a claim realistically and consider settlement. Costs orders are discretionary; parties should not assume the estate will pay everyone’s expenses. An unsuccessful applicant may face an adverse costs order. Conduct and settlement offers can affect the outcome on costs.
Plan for the family circumstances as well as the assets
At CM Lawyers, we encourage a coordinated review of the will, asset ownership, superannuation nominations and the needs of those who may have a claim. The aim is to make informed decisions supported by clear evidence. For help preparing your will or assessing a family provision claim, contact CM Lawyers. This article provides general information, not advice on a particular estate.
Key resources
Succession Act 2006 NSW — Chapter 3 governs eligibility, family provision orders, notional estate, releases and evidence of the deceased’s statements.
Legal Aid NSW family provision claims — Practical guidance on eligible applicants, the usual 12 month deadline and seeking advice.
Supreme Court of NSW contested proceedings — Explains the distinction between probate disputes and family provision proceedings.
Steinmetz v Shannon [2019] NSWCA 114 — Verified Court of Appeal decision concerning provision for a widow and the limitations of an annuity in that estate.
Justice Lindsay on the family provision jurisdiction — Judicial explanation of testamentary freedom, estrangement and the statutory test.
Supreme Court Practice Note SC EQ 7 — Requirements for family provision proceedings, including evidence, mediation and leave for subpoenas.
Judicial Commission of NSW guidance on costs — Explains costs principles, including the court’s discretion in family provision cases.
