Call Us Now 1300 309 551

  • Making a claim against an estate

Making a claim against an estate

Date: September 23, 2005

Authors: LAC Lawyers

Family Provision Act Claims

Sometimes when a family member passes away some of the deceased’s relatives believe that they have not been adequately provided for in the deceased’s will.

These persons are often current or former spouses, de facto spouses, children or step children.   Sometimes grandchildren also may make a claim as well as other persons who have, at some time, been at least partially financially dependant on the deceased and a member of the deceased's household.  Frequently the deceased is viewed as having had a moral obligation to make some provision for that person on their death.

In these circumstances it may be possible to make a claim under the Family Provision Act 1982 (NSW).  Proceedings for an order under the Family Provision Act must be commenced within 18 months after the death of the deceased person.   The court has the power to extend the time for commencement of proceedings where sufficient cause is shown for the application not having been made within the 18 month period.

In order for a court to alter the deceased’s will the court must be satisfied that the deceased failed to make adequate provision for the “proper maintenance, education and advancement in life” of the person making the application.   Whether the deceased made “adequate” or “proper” provision depends on all the circumstances of the case.

For this reason courts consider a wide range of factors such as:   the wealth of the deceased, the number and needs of other dependents and beneficiaries, the age and capacity of the applicant and the relationship between the applicant and the deceased.

Where a court is satisfied that the deceased failed to make adequate and proper provision for someone, the court then decides what, if any, provision should be made for the applicant.  In making this second determination, courts again consider a wide range of factors.   For instance, if the applicant is a person with an intellectual disability the court may consider issues such as the availability of social security benefits and the extent to which the person’s disability inhibits his or her ability to gain employment.

Undue Influence & Duress

Courts can declare a will to be invalid in situations where it was made under duress or undue influence.  In either situation, someone attempted to influence the terms of the will.  Duress can be physical, psychological or in the form of a threat.   Actual evidence of duress is required.

Undue influence can arise in circumstances where a relationship exists between a person making the will and another person such that the other person was in the position to exert some power over the person making the will to make the will in a certain way.   Most often the person exerting the undue influence is likely to be a family member.


A will can also be challenged in the event that, at the time it was made, the person making the will lacked the necessary legal capacity to make the will.   In effect, this means that the person making the will, at the time, did not understand the nature and effect of a will they were making, or were unable to make rational decisions regarding the distribution of their property.

This situation most frequently occurs in relation to the elderly, people in frail health, or those suffering from an illness which affects their mind.

In almost all cases, medical evidence as to the person's lack of capacity will be required to establish the incapacity at the time the Will was made.

Contract to Make a Will

In some situations, people (usually married or de facto couples) may choose to enter into a binding contract to make their wills in a certain way.   Usually both people make a will in accordance with the contract at or about the time the contract is entered into.

It sometimes happens that one of those persons may make a later will which is inconsistent with the contract, often without telling the other contracting party about their new will, or perhaps after the death of that person.

Where the contract regarding the making of the wills has been properly drafted and is legally enforceable, persons affected by a breach of the contract may be entitled to make a claim for damages or other relief from the court.

Estate Law - Estate Disputes - Family Provision Claims - Time Limits - Factors To Be Considered

Date: November 12, 2013
Author(s): Angelita Manlangit LL.B.

Wills,Probate & Estate Law-Estate Litigation–Second Marriages-Succession Act 2006–Provision/Adequate Provision By Testator–Examples–Outcomes

Date: October 28, 2013
Author(s): Teresa Dodaro BA LLB

Who can draft a will and the requirements for a valid will

Date: December 01, 2010
Author(s): LAC Lawyers
Wills are important legal documents and we recommend you seek legal assistance in drafting your Will. This is even more pertinent should you have...

Succession Act Claims - Can a step child make a claim on an estate?

Date: November 10, 2010
Author(s): LAC Lawyers
Are you a member of a modern family which like many others consists of step-children? If so, do you wonder what your responsibility is as a step-parent to make provision from your Estate to your step-children?

Wills, Probate and Estate Disputes - An Overview of Estate Law

Date: October 08, 2010
Author(s): LAC Lawyers
Find out about estates, executors, wills, probate, inheritance, beneficiaries, and more...

Can my self managed superannuation fund (SMSF) buy property?

Date: September 01, 2010
Author(s): LAC Lawyers
In the past, Australian law with respect to Superannuation did not permit a SMSF to borrow money, or to mortgage the fund’s existing property BUT...

Estate Planning - Self Managed Super Funds

Date: July 12, 2010
Author(s): LAC Lawyers
Retirement is not at the forefront of most working people’s lives but it should be. As Australia’ population is aging superannuation, and saving for retirement is becoming increasingly important.

Wills, Probate & Estate Disputes - Have you been left out of a Will?

Date: June 04, 2010
Author(s): LAC Lawyers
The death of a relative or an intimate is a difficult time for us all. We mourn their loss and grieve for the times that might have been. Then, the Will is read and no one contacts you to discuss your inheritance. You believed your loved one would have made provision for you in their Will and you are shocked to learn that this has not happened. What do you do?

Wills, Probate & Estate Disputes - Will Kits

Date: June 04, 2010
Author(s): LAC Lawyers
Your Will Last Will and Testament (Will) is your final legally binding communication to the world including those you love. You should ensure that expression is tailored to meet the whole of your circumstances.

Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 3: Types of Testamentary Trusts

Date: January 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The main reason for creating a beneficiary controlled testamentary trust is for protection of the principal beneficiary, particularly in a situation of relationship breakdown of marriage or de facto partnership. With the beneficiary controlled testamentary trust, there is considerable protection of assets from the primary beneficiary’s hostile family members.

Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 1: The Will

Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
A will is a legal document in which the will maker sets out how and to whom his or her personally owned assets are to be distributed after death, the manner in which his or her estate is to be administered and the powers the executors are given.

Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 2: What is a Testamentary Trust?

Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Simply, a testamentary trust is a trust established by a will. Testamentary trusts can be mandatory or optional, fixed or non-fixed, flexible or protective, short or long-term, or charitable or non-charitable.

Deceased Estate Claims - Freedom to do what you want with your estate is limited

Date: May 19, 2009
Author(s): LAC Lawyers
No doubt you’ve heard people say from time to time they think they should be able to do what they like with their wills and how their estate, being their assets, is given once they die. They’ve worked hard all their lives, they’ve amassed a lot, or a little, and now, considering who should get their assets once they ‘go to a better place’, they frequently decide they’ll vent their disapproval of one or more of their children’s behaviour towards them by favouring one over another.

A Will: how should I make one?

Date: March 07, 2009
Author(s): LAC Lawyers
If you want to leave your estate, being your assets which you’ve struggled for years to acquire, to those closest to you, then it’s advisable to make a will. Otherwise your estate will be administered in accordance with the statutory order set out in the Probate and Administration Act.

Making A Good Will

Date: June 01, 2008
Author(s): LAC Lawyers
Some say there are two certainties in life: death and taxes. But if you do not want your ears ringing after you have left this earth, then it is certain that you need to make a Will and to make sure that your Will is clear, precise and properly executed.

Estate Planning - More than just a matter of making a will - Part 1

Date: May 06, 2008
Author(s): LAC Lawyers
Many people believe that by making a will, they’ve sufficiently planned for their death. This is a good start. A lot of people don’t do even that. Some estimates suggest that as many as half the people in Australia that die each year do not leave a formal will.

Estate Planning - More than just a matter of making a will - Part 2

Date: May 06, 2008
Author(s): LAC Lawyers
As stated previously in Estate Planning - More than just a matter of making a will Part 1, preparing a will is an important part of estate planning. A thorough and well drafted will determines to a large extent how your affairs are to be dealt with when you’re gone.

Disputing A Will & Family Provision Act Claims

Date: November 28, 2007
Author(s): LAC Lawyers
Two of the more common complaints made in connection with an estate include that the deceased lacked understanding or mental capacity when he or she made the will or that a family member or dependant was "left out of the will".

What to expect when you call LAC Lawyers

Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.

Essential Will Information

Date: November 08, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Many people today make their own wills and this approach is fraught with danger. A will is a written declaration that sets out how a person wants their assets to be distributed to their beneficiaries following death.

The Importance Of A Will

Date: September 26, 2006
Author(s): LAC Lawyers
If you do not make a will and die “intestate” then your estate will be divided according to the law, regardless of your wishes.

The Benefits of Hiring A Lawyer

Date: August 16, 2006
Author(s): LAC Lawyers
The old adage “you get what you pay for” is as true today as it has ever been.

Why stay with your lawyer

Date: August 01, 2006
Author(s): LAC Lawyers
The lawyer/client relationship is a personal one and there are many reasons which will dictate who you can and cannot work with. If you don’t like your lawyer, should you change? Ultimately, the relationship between a lawyer and client must be built on mutual trust.

Client Testimonial

"I just wanted to say ?Thank YOU? for your sincere advice and guidance on my Tax issues & concerns."

"I would like to take this opportunity to thank LAC Lawyers for your support in handling my Family Law Case throughout this stressful period in my life "

"Thank you for all of your help. The service was outstanding - all of my questions were answered promptly, everything ran smoothly"

"Thank you for all your help in getting such a great result! I honestly don''t think I could have had the success I did without your assistance. So again, thank you!"