Preparing a NSW family provision claim
A family provision claim allows an eligible person who has been left without adequate provision to seek further provision from the estate. The claim must be filed within 12 months of the date of death unless the court extends time.
This is an 8-step workflow for preparing a family provision claim in NSW under Chapter 3 of the Succession Act 2006 (NSW), including eligibility, disclosure, and settlement.
Before you start
- Eligibility confirmed under s 57
- Copy of the will (or letters of administration) obtained
- Financial information about the applicant collated
- Estate asset inventory or estimate available
The workflow
Confirm eligibility
Confirm the applicant is an eligible person under s 57 of the Succession Act — spouse, de facto, former spouse, child, grandchild or dependent member.
Assess adequate provision
Assess whether adequate provision has been made considering the factors in s 60 — applicant's financial position, the estate's size, relationships, and competing claims.
Notify the executor
Notify the executor of the intended claim and request further estate information. Raise the 12-month time limit early to avoid any argument about delay.
Draft the summons and affidavit
Draft the summons under UCPR Part 6 and the applicant's affidavit addressing eligibility, financial position, the relationship, and the provision sought.
Serve and file
File and serve the summons on the executor within 12 months of death. Attach a draft affidavit of financial position in the form required by Practice Note.
Attend first directions
Attend the first directions hearing and obtain orders for evidence, mediation date, and any interlocutory issues.
Prepare for mediation
Prepare for court-annexed or private mediation by exchanging updated financial material, offers, and preparing a position paper for the mediator.
Settle or run hearing
Settle at mediation and document the terms by consent orders approved by the court, or prepare for final hearing if the matter does not resolve.
What you will have at the end
A consent order or judgment providing for further provision from the estate, or dismissal of the claim if adequate provision has been made.
Common issues
- Missing the 12-month time limit under s 58
- Incomplete affidavit of financial position
- Not addressing competing claims and the testator's reasons
- Overstating the estate value or understating resources
- Settling without considering costs consequences
Run this workflow on a real matter
Quillio drafts the summons, affidavit, and position paper mapping the s 60 factors against the evidence. See /practice-areas/wills-estates-lawyers or start a free trial.
This workflow is a general guide for NSW. Other jurisdictions have different family provision regimes and time limits.
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