Written by: Richele Nelsen Losing a loved one is one of life’s most difficult experiences. Amid the grief, many Australians discover they may not have been fairly represented in the will.
There are various reasons a will might not adequately provide for spouses, children, or other loved ones. Fortunately, family provision claims offer a legal path to ensure everyone is properly considered. This February 2026 guide explains who can make family provision claims in Australia, the time limits for filing, and other important details.
What are family provision claims in Australia?
A family provision claim is a way for someone to ask for a fair share of a loved one’s estate after they pass away. People sometimes call this “contesting a will,” but it’s really about making sure everyone who depends on the deceased is properly provided for.
The rules for making a claim are different in each state and territory, including who can apply and how long you have to do it. These claims help protect spouses, children, and other dependants who may have been left out or not given enough support, giving them a legal way to request what is fair.
Find out how much you can claim today
Who is eligible to make a family provision claim?
Not everyone can make a family provision claim. Generally, you may be eligible if you were:
- Left out of a will entirely
- Given less than you believe you’re entitled to
- A person for whom the will does not accurately reflect the deceased’s intentions.
This can happen if a will hasn’t been updated for a long time (for example, naming an ex-spouse or not including all children) or if it was made under duress.
Eligibility criteria
To be deemed eligible, you must meet certain criteria. Normally, this means that you had a close bond with the deceased, such as being a family member.
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To contest a will in NSW, someone will be deemed eligible if they’re:
- The spouse or de facto partner of the deceased
- A former spouse of the deceased
- A child of the deceased (including adopted children).
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Other people who may be conditionally eligible include:
- Someone with a close personal relationship with the deceased at the time of death
- Grandchildren
- Dependants, financially or otherwise
- People who shared a household with the deceased.
Registered caring partners can also contest a will in Victoria.
Legal insight
Being eligible often depends on the nature of your relationship. A grandchild, for instance, must have been close to and dependent on their grandparent. If they were estranged or already adequately provided for, a successful family provision claim is unlikely.
Time limits to contest a will in Australia
Each state has different time limits for making a family provision claim:
State/Territory | Time limit |
Australian Capital Territory | Six months from grant of probate or administration |
New South Wales | 12 months from the grant of probate or administration |
Northern Territory | 12 months from the grant of probate or administration |
Queensland | Nine months from the grant of probate or administration |
South Australia | Six months from grant of probate or administration |
Tasmania | Three months from grant of probate or administration |
Victoria | Six months from the grant of probate or administration |
Western Australia | Six months from the grant of probate or administration |
Key takeaway
Missing the time limit can mean losing the right to make a claim entirely, even if your case is strong. Acting quickly isn’t just procedural; it can protect your financial security and ensure your interests are considered before the estate is distributed.
The court process for family provision claims
Before a family provision claim is determined, there is a structured legal process designed to encourage early resolution wherever possible. Most matters begin outside the courtroom, with formal court proceedings only occurring if an agreement cannot be reached.
Mediation
Before taking a claim to court, most disputes go through mediation: a structured negotiation with a neutral third party. Mediation is often quicker, less expensive, and less stressful than going straight to court.
Mediation allows the parties to discuss the distribution of the estate in a controlled setting, supported by legal representatives. It can address issues such as financial need, previous support provided by the deceased, and competing claims on the estate.
Example: In a claim involving adult children, mediation may reveal that one child received significant financial assistance during the deceased’s lifetime, while another did not. Taking this into account can lead to a negotiated adjustment of the estate that reflects the deceased’s overall provision, avoiding the delay and cost of a court determination.
Our estate dispute lawyers can represent you in mediation, and in fact, most of our claims settle before reaching court.
What happens at court
If mediation does not resolve the dispute, the claim proceeds to court. A judge will review the case and determine what is fair. Factors considered include:
- Value of the estate
- Financial circumstances of the applicant
- Healthcare needs of the applicant
- Other claims to the estate.
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Legislation varies by state. For example, in you’re contesting a will in Queensland, the state’s Succession Act 1981 allows the court to make provision for children who have not been adequately provided for, whether the deceased left a will or not.
Who is the defendant in a family provision claim?
Every family provision claim must be brought against a legal party responsible for administering the estate. In most cases, this is the executor named in the will. The executor represents the estate and responds to the claim on its behalf.
When the executor is the defendant
The executor’s role is to carry out the terms of the will and distribute the estate. When a family provision claim is made, the executor becomes the defendant, even if they are not personally benefiting from the will.
This structure allows the court to consider the claim without targeting individual beneficiaries directly.
Key takeaway
Family provision claims are made against the estate, not against beneficiaries personally, even though the executor is named as the defendant.
Can an executor make a family provision claim?
An executor can make a family provision claim, but they cannot remain in their role while doing so.
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Executors are often close family members, such as a spouse or child. If the executor believes they were not adequately provided for under the will, they may wish to bring a claim. However, a person cannot act as both claimant and defendant in the same proceedings.
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To proceed, the executor must formally step aside before administering the estate. The court will then appoint an independent administrator to act on behalf of the estate during the claim.
Key takeaway
Executors can bring claims, but only after relinquishing their role to avoid a conflict of interest.
Estates without a will (intestate estates)
An intestate estate is one where the deceased did not leave a valid will. It is estimated that around half of Australians die without a will.
In these cases, the estate does not automatically pass to the government. Instead, it is distributed according to statutory rules, usually to a spouse, children, or other close relatives.
For example, in New South Wales, the Succession Act 2006 (NSW) sets out a clear order of inheritance. The estate only passes to the state if no eligible relatives can be identified.
Key takeaway
Intestacy laws prioritise family members, with the state acting as a last resort only where no relatives exist.
Contesting an intestate estate
If you believe an intestate estate has been wrongly distributed, or that you were overlooked, you may still be able to make a family provision claim.
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Eligibility depends on demonstrating a strong relationship with the deceased, such as being a spouse, child, dependent, or someone the deceased would reasonably have provided for had they made a will.
Legal costs and family provision claims
The court determines how legal costs are paid in a family provision claim. In some cases, costs are paid from the estate. In others, parties may be required to cover their own legal fees.
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If the court finds that a claim had no reasonable basis, the claimant may also be ordered to pay the defendant’s legal costs.
Key takeaway
While costs can sometimes be covered by the estate, unsuccessful claims may carry financial risk. Our lawyers assess the strength of your claim early and provide clear advice on likely outcomes, helping you make informed decisions before proceeding.
Get a free claim check
Family provision claim examples
Our experienced lawyers support grieving families across Australia to challenge unfair wills and protect their rightful inheritance. We have successfully acted for clients in a wide range of family provision claims, including:
- An estranged daughter who had been completely excluded from her father’s will.
- A son left out of his father’s estate, where we secured a $200,000 provision from the estate.
- Children who were at risk of losing their inheritance due to intestacy, where an ex-husband was set to receive the entire estate. We ensured the children received equal shares instead.
- Two daughters excluded from their father’s estate, where we successfully pursued a notional estate claim (available only in NSW) to protect their entitlements.
Losing a loved one is one of life’s most difficult experiences. Amid the grief, many Australians discover they may not have been fairly represented in the will.
There are various reasons a will might not adequately provide for spouses, children, or other loved ones. Fortunately, family provision claims offer a legal path to ensure everyone is properly considered. This February 2026 guide explains who can make family provision claims in Australia, the time limits for filing, and other important details.
What are family provision claims in Australia?
A family provision claim is a way for someone to ask for a fair share of a loved one’s estate after they pass away. People sometimes call this “contesting a will,” but it’s really about making sure everyone who depends on the deceased is properly provided for.
The rules for making a claim are different in each state and territory, including who can apply and how long you have to do it. These claims help protect spouses, children, and other dependants who may have been left out or not given enough support, giving them a legal way to request what is fair.
Find out how much you can claim today
Who is eligible to make a family provision claim?
Not everyone can make a family provision claim. Generally, you may be eligible if you were:
- Left out of a will entirely
- Given less than you believe you’re entitled to
- A person for whom the will does not accurately reflect the deceased’s intentions.
This can happen if a will hasn’t been updated for a long time (for example, naming an ex-spouse or not including all children) or if it was made under duress.
Eligibility criteria
To be deemed eligible, you must meet certain criteria. Normally, this means that you had a close bond with the deceased, such as being a family member.
Â
To contest a will in NSW, someone will be deemed eligible if they’re:
- The spouse or de facto partner of the deceased
- A former spouse of the deceased
- A child of the deceased (including adopted children).
Â
Other people who may be conditionally eligible include:
- Someone with a close personal relationship with the deceased at the time of death
- Grandchildren
- Dependants, financially or otherwise
- People who shared a household with the deceased.
Registered caring partners can also contest a will in Victoria.
Legal insight
Being eligible often depends on the nature of your relationship. A grandchild, for instance, must have been close to and dependent on their grandparent. If they were estranged or already adequately provided for, a successful family provision claim is unlikely.
Time limits to contest a will in Australia
Each state has different time limits for making a family provision claim:
State/Territory | Time limit |
Australian Capital Territory | Six months from grant of probate or administration |
New South Wales | 12 months from the grant of probate or administration |
Northern Territory | 12 months from the grant of probate or administration |
Queensland | Nine months from the grant of probate or administration |
South Australia | Six months from grant of probate or administration |
Tasmania | Three months from grant of probate or administration |
Victoria | Six months from the grant of probate or administration |
Western Australia | Six months from the grant of probate or administration |
Key takeaway
Missing the time limit can mean losing the right to make a claim entirely, even if your case is strong. Acting quickly isn’t just procedural; it can protect your financial security and ensure your interests are considered before the estate is distributed.
The court process for family provision claims
Before a family provision claim is determined, there is a structured legal process designed to encourage early resolution wherever possible. Most matters begin outside the courtroom, with formal court proceedings only occurring if an agreement cannot be reached.
Mediation
Before taking a claim to court, most disputes go through mediation: a structured negotiation with a neutral third party. Mediation is often quicker, less expensive, and less stressful than going straight to court.
Mediation allows the parties to discuss the distribution of the estate in a controlled setting, supported by legal representatives. It can address issues such as financial need, previous support provided by the deceased, and competing claims on the estate.
Example: In a claim involving adult children, mediation may reveal that one child received significant financial assistance during the deceased’s lifetime, while another did not. Taking this into account can lead to a negotiated adjustment of the estate that reflects the deceased’s overall provision, avoiding the delay and cost of a court determination.
Our estate dispute lawyers can represent you in mediation, and in fact, most of our claims settle before reaching court.
Who is the defendant in a family provision claim?
Mediation
Every family provision claim must be brought against a legal party responsible for administering the estate. In most cases, this is the executor named in the will. The executor represents the estate and responds to the claim on its behalf.
When the executor is the defendant
The executor’s role is to carry out the terms of the will and distribute the estate. When a family provision claim is made, the executor becomes the defendant, even if they are not personally benefiting from the will.
This structure allows the court to consider the claim without targeting individual beneficiaries directly.
Key takeaway
Family provision claims are made against the estate, not against beneficiaries personally, even though the executor is named as the defendant.
Can an executor make a family provision claim?
An executor can make a family provision claim, but they cannot remain in their role while doing so.
Â
Executors are often close family members, such as a spouse or child. If the executor believes they were not adequately provided for under the will, they may wish to bring a claim. However, a person cannot act as both claimant and defendant in the same proceedings.
Â
To proceed, the executor must formally step aside before administering the estate. The court will then appoint an independent administrator to act on behalf of the estate during the claim.
Key takeaway
Executors can bring claims, but only after relinquishing their role to avoid a conflict of interest.
Estates without a will (intestate estates)
An intestate estate is one where the deceased did not leave a valid will. It is estimated that around half of Australians die without a will.
In these cases, the estate does not automatically pass to the government. Instead, it is distributed according to statutory rules, usually to a spouse, children, or other close relatives.
For example, in New South Wales, the Succession Act 2006 (NSW) sets out a clear order of inheritance. The estate only passes to the state if no eligible relatives can be identified.
Key takeaway
Intestacy laws prioritise family members, with the state acting as a last resort only where no relatives exist.
Contesting an intestate estate
If you believe an intestate estate has been wrongly distributed, or that you were overlooked, you may still be able to make a family provision claim.
Â
Eligibility depends on demonstrating a strong relationship with the deceased, such as being a spouse, child, dependent, or someone the deceased would reasonably have provided for had they made a will.
Legal costs and family provision claims
The court determines how legal costs are paid in a family provision claim. In some cases, costs are paid from the estate. In others, parties may be required to cover their own legal fees.
Â
If the court finds that a claim had no reasonable basis, the claimant may also be ordered to pay the defendant’s legal costs.
Key takeaway
While costs can sometimes be covered by the estate, unsuccessful claims may carry financial risk. Our lawyers assess the strength of your claim early and provide clear advice on likely outcomes, helping you make informed decisions before proceeding.
Get a free claim check
Family provision claim examples
Our experienced lawyers support grieving families across Australia to challenge unfair wills and protect their rightful inheritance. We have successfully acted for clients in a wide range of family provision claims, including:
- An estranged daughter who had been completely excluded from her father’s will.
- A son left out of his father’s estate, where we secured a $200,000 provision from the estate.
- Children who were at risk of losing their inheritance due to intestacy, where an ex-husband was set to receive the entire estate. We ensured the children received equal shares instead.
- Two daughters excluded from their father’s estate, where we successfully pursued a notional estate claim (available only in NSW) to protect their entitlements.
