Defending a Will: How to Handle a Family Provision Claim in NSW

Imagine you’ve just stepped into the shoes of an executor. You are managing the estate of a loved one who has passed away, carefully following the instructions they meticulously laid out in their Will. You become busy with organising assets and trying to do your best for the beneficiaries.  Then, a lawyer’s letter arrives.  Someone wants to make a claim against the estate.  Suddenly, you are faced with a legal battle you never asked for.

If you currently face this scenario, here is a crucial consideration for you: As the appointed executor, it is your legal duty to seek to uphold the provisions of the Will. 

While the thought of a court battle is intimidating, there is no cause for you to panic.   The law expects you to act reasonably as required by your circumstances, and the vast majority of these disputes are settled through mediation rather than a dramatic courtroom showdown in Sydney.

Let us calm down and take a closer look at what is involved when you are defending a claim against an estate in NSW.



What Is a Family Provision Claim? 

In New South Wales, under the Succession Act 2006 (NSW), the law allows certain people, called “eligible persons”, to apply to the Supreme Court to make orders for their benefit if they believe they have been left without adequate provision for their proper maintenance, education, or advancement in life.  This type of claim is commonly referred to in NSW as a Family Provision Claim.

This means that the first question when facing a Family Provision Claim will be “Is the person making the claim an eligible person?”

The law recognises that people have a moral duty to make sufficient provision in their Wills for those that fit the criteria of eligible persons (for example, a spouse). 

If the Court believes that a deceased person’s Will fails to do that, the Court is allowed to step in and make provision, or make more provision (where the Will already provides for the person), out of the estate assets in favour of the person making the Family Provision Claim.

The law in NSW draws a strict line around who can make a Family Provision Claim. To make a claim a person must fit into one of the specific categories of an eligible person.  Under NSW law eligible persons are:

• A current spouse or former spouse of the deceased person.
• A person with whom the deceased person was living with in a de facto relationship at the time of their death.
• A child of the deceased (including adult and adopted children).
• A grandchild or member of the household who was wholly or partly dependent on the deceased at some point in their life.
• A person who was living in a close personal relationship with the deceased when they died.

The glaring omission from the above criteria is a specific mention of stepchildren.  This means that under the Succession Act 2006 (NSW) a stepchild must provide evidence of being a member of the deceased’s household at some point during the deceased’s life and their dependency on the deceased, to be considered an eligible person.

If the person who wants to make a Family Provision Claim fits one of these descriptions, they have a strict 12-month window from the date of death to file a formal claim with the Supreme Court.

The Core Strategy: How to Defend a Will

When you are defending a Family Provision Claim, you are the shield protecting the estate.   Your purpose as the executor is to seek to uphold the deceased’s wishes, but you must do so while acting reasonably with regard to the circumstances. You cannot simply dig your heels in if there is an eligible person that is making a claim with merit.

Your defence should rely on an understanding of how a Judge will evaluate the case. The Court evaluates the individual circumstances of each case to determine whether the provision left in the Will was inadequate for the applicant’s proper maintenance, education or advancement in life, and if so, what amount should be awarded from the estate for their benefit.   To do so the Court considers the matters referred to in Section 60 of the Succession Act 2006 (NSW).

As part of your defence, you will likely need to file affidavits (sworn statements) that lay out the relevant facts for the Court to consider when determining the claim.  At a minimum, these should include:

1. A Picture of the Estate

You must provide the court with a comprehensive breakdown of the estate’s assets and liabilities. If the estate is relatively small—say, a modest townhouse in Wollongong and only nominal savings—the Court will expect the parties to come to an agreement that does not bleed the estate dry in legal fees.

2.The Relationships of the Deceased  

It is important to include the history and nature of the relationships between the deceased and the beneficiaries included in the Will.  This is to be compared to the relationship between the deceased, and the person is making a claim.   Details of any support that those beneficiaries may have offered to the deceased during their lifetime or that the deceased provided to the beneficiaries should be included. 

3.The Competing Financial Needs of the Beneficiaries

You must present evidence of the financial circumstances of the people who were left assets in the Will. If the deceased left their estate to a daughter who struggles with a heavy mortgage or has a significant disability, the court will likely consider her present and future financial needs to be more substantial than those of a wealthy applicant.

4.Deceased’s Reasons and Intentions

Did the deceased leave behind a letter or written statement explaining why they left someone out of their Will or made less provision for someone than the person may have been expecting?  While a letter or statement by the deceased does not provide a complete defence or operate as a bar to a Family Provision Claim, the Court must consider any evidence of the deceased’s intentions.

Reality Check: How Often Is Contesting a Will Successful?

When executors come into one of our offices, they often ask a very direct question: Can we win this? Will the Court give the defendant what they are asking for?

There are no absolute certainties in estate litigation.  Whilst statistics indicate that a considerable portion of Family Provision Claims in NSW result in the claimant receiving some form of provision from the estate, this does not necessarily indicate that all those cases can be considered successful.  The measure of each case’s success will depend not just on the decision of the court, but by the relative size of the estate and legal costs expended during the matter.

The focus of the law on ensuring a deceased person’s moral duties are met means that a claim brought by an eligible applicant who can demonstrate genuine financial need is often viewed favourably by the court. However, the outcome of every case depends on its own unique facts.  In Family Provision Claims the Court exercises considerable discretion as to how it awards costs and takes costs proportionality to the size of the estate very seriously.   

If a case proceeds all the way to a full court hearing, the legal costs can heavily impact on the assets of an estate left to distribute to the beneficiaries.  Defending a Family Provision Claim can easily incur tens of thousands of dollars in costs. This is exactly why your duty as executor to act “reasonably” matters so much.  In NSW executors are generally entitled to have their reasonably incurred legal costs paid out of the estate, but the Court maintains discretion and can make a personal costs order if it considers that an executor acted unreasonably, in bad faith or in breach of their duties.

Fortunately, the Supreme Court of NSW regularly exercises its power to order parties to attend a mandatory mediation session early in a matter.

A vast number of Will and estate disputes are resolved at mediation rather than in a courtroom.  Choosing to settle a claim early isn’t a sign of weakness or “losing”—it can be part of a strategic, professional defence that has the advantage of limiting legal costs and preserving the maximum possible inheritance for the intended beneficiaries.

Knowing the Difference: Family Provision vs. Validity Challenges

It is incredibly important not to confuse a Family Provision Claim (which argues with the provisions made in a Will) with a challenge to the actual validity of the Will itself.

When someone attempts to throw out a Will completely, they aren’t arguing about financial need or the failure to have provision made for them.  They are arguing that the document that the executor is providing to the Court is not the legal last Will of the deceased.   The grounds for contesting the validity of a Will in NSW is very different to those matters considered by a Court when determining a Family Provision Claim.

The main grounds for challenging the validity of a Will are:

• Lack of Testamentary Capacity.  This involves proving that the deceased was suffering from advanced cognitive impairment (for example, dementia) at the time the Will was signed and that they did not have the necessary understanding to consider what they owned or the moral responsibilities they may have to make provision for persons in their life.
• Undue Influence or Duress.  Evidence will be required that a caregiver, relative or other person used coercion, threats, or extreme psychological pressure to force a vulnerable person to sign a Will. 
• Failure to meet Formalities.  The content of the Will or the execution of the Will fails to meet the legal criteria in NSW for making a Will (for example, the Will was not signed by the deceased in the presence of two witnesses). 
• Fraud or Forgery.  Evidence that shows the signature is not the signature of the deceased, the Will was changed after it was signed or that the deceased did not even understand that they were signing a Will can invalidate a Will. 

Challenging validity requires concrete evidence from professionals (often medical professionals) and witnesses. If a Will is found invalid, the court reverts to an older Will or applies the laws of intestacy (the laws in NSW that applies when someone dies without a Will).

Protecting the Estate and Moving Forward

If you receive any notice of a claim against an estate that you are managing, your immediate priority should be a complete pause on asset distribution. If you give away jewellery, cash, or transfer a property title to a beneficiary in accordance with the provisions of a Will after being put on notice, you could find yourself personally liable to pay any provision the court later awards to the claimant.

Defending a Will can be an emotional tightrope. It requires balancing the respect you are required to give to the deceased’s final wishes and the interests of the various beneficiaries named in the Will with the objective and practical assessment of legal costs and relevant state legislation.

Our team at Kells has been standing beside executors and families across the Illawarra and Sydney for over 50 years. We bring a fresh, straightforward approach to estate disputes—helping you cut through the emotional noise, protect the estate’s value, and find practical, dignified solutions. If you need a professional to review a claim and give you genuine, honest options, we can discuss and figure out the road ahead together.

Disclaimer: The information contained in this article is provided for general information purposes only. It does not constitute formal legal advice and should not be relied upon as such. Because the law is constantly changing and every individual’s circumstances are unique, you should always obtain professional legal advice from a qualified solicitor before taking or refraining from any action. Accessing or reading this article does not create a lawyer-client relationship between you and Kells. Our liability is limited by a scheme approved under Professional Standards Legislation.