Family Provision Claim

What a Family Provision Claim Is

A family provision claim doesn't argue that a will is invalid. It argues that a valid will fails to make reasonable financial provision for someone who deserves it. The claim asks the court to override the testator's wishes — not because the will was forged or the testator lacked capacity, but because the distribution is inadequate for an eligible dependent.

In England and Wales, this right comes from the Inheritance (Provision for Family and Dependants) Act 1975. Australia has equivalent legislation in each state — the Succession Act in New South Wales, the Administration and Probate Act 1958 in Victoria, and similar statutes across other states and territories. New Zealand has the Family Protection Act 1955.

These claims exist because the common law gives testators almost complete freedom to distribute their estate however they choose — and legislators decided that freedom shouldn't extend to leaving a dependent spouse or child without adequate support.

Who Can Bring a Claim

The 1975 Act limits eligibility to specific categories:

• Surviving spouse or civil partner — entitled to the highest standard of provision, assessed against what they would reasonably expect from the marriage, not just basic maintenance
• Former spouse or civil partner who hasn't remarried
• Children of the deceased — including adult children, though they face a higher bar than minor children
• Any person treated as a child of the family — stepchildren and informally adopted children who were raised by the deceased
• Any person who was maintained, wholly or partly, by the deceased immediately before death — this includes dependent relatives and others who relied on the deceased financially
• Cohabitants who lived with the deceased as spouses for at least two years before death

Adult children can bring claims, but courts scrutinize them more carefully. An independent, financially stable adult child who was simply left out of the will faces an uphill challenge. An adult child with disabilities, limited earning capacity, or who sacrificed career opportunities to care for the deceased has a stronger case.

The Six-Month Deadline

In England and Wales, the claim must be filed within six months of the grant of probate. Not six months from the death — six months from the date the court formally issues the grant of representation.

Late claims are possible with the court's permission, but the bar is high. You'll need to explain why you missed the deadline and demonstrate that allowing the claim wouldn't cause unfair prejudice to the beneficiaries who already received their shares. In practice, once assets have been distributed, recovering them is extremely difficult.

Australian deadlines vary by state. Victoria requires filing within six months of the grant of probate. New South Wales allows 12 months from the date of death. Check the applicable state or territory rule before calculating any other deadline.

What Courts Consider

The 1975 Act lists specific factors in section 3. Courts work through them systematically:

• The financial resources and needs of the applicant — current and foreseeable future
• The financial resources and needs of any other beneficiary
• The obligations and responsibilities the deceased had toward the applicant
• The size and nature of the estate
• Any disability of the applicant
• Any other matter the court considers relevant, including the applicant's conduct and the deceased's reasons for the distribution

Courts don't redistribute estates to achieve perfect fairness. They ask whether the existing provision falls below an objective standard of reasonableness. For surviving spouses, that standard mirrors what they would have received in a divorce. For children and other applicants, it's closer to basic maintenance unless special circumstances justify more.

The deceased's stated reasons for the distribution — sometimes recorded in a letter of wishes or a statement to their solicitor — carry weight but aren't dispositive. A parent who explained that they left everything to one child because the other "didn't need it" may find that reasoning overridden if the excluded child's circumstances have changed.

How Claims Typically Settle

In Australia, approximately 80% of family provision claims resolve before trial, usually through formal mediation. The settlement negotiation happens within the framework of what the court would likely order — both sides' solicitors estimate the probable judicial outcome, and the settlement lands somewhere in that range.

Common settlement structures include:

• A lump sum payment from the estate to the claimant
• Transfer of specific property (often the family home or a share of it)
• Ongoing periodic payments, particularly for dependent applicants
• A life interest in property — the right to live in the family home during the claimant's lifetime, with ownership reverting to other beneficiaries on their death

Mediation costs for family provision claims typically run £1,000–£3,000 per party for a day-long session. That's significantly less than a trial, which can cost £20,000–£100,000+ per side, with the loser usually ordered to pay a substantial portion of the winner's costs under the English cost-shifting rule.

The Cost Risk

Family provision claims in the UK follow the "loser pays" principle. If your claim fails, the court can order you to pay the estate's legal costs on top of your own. This risk is real, and it's the primary reason weaker claims settle or aren't brought at all.

Two exceptions soften this risk in estate cases. If the court finds the testator caused the dispute through ambiguous drafting or unreasonable provisions, costs may come from the estate. And if the claimant had reasonable grounds to investigate the provision, the court may make no costs order — each side bears their own fees even though the claim failed.

The Contesting a Will toolkit covers family provision claims alongside will contests, with a standing self-assessment worksheet that helps you evaluate which route — contest or provision claim — fits your situation.