Contested Estates Family Provision and Disputed Will Claims

Contested Estates in Australia: Family Provision & Disputed Will Claims Across NSW, ACT, QLD and WA

Family provision and disputed will claims allow eligible individuals to seek a greater share of a deceased person’s estate where they believe they have not been adequately provided for. Although the core principles are similar across Australia, each jurisdiction has its own legislation, eligibility rules, time limits and court processes.

This consolidated overview outlines the key features of family provision claims in New South Wales, the Australian Capital Territory, Queensland and Western Australia.

 

Australia-Wide Comparison 

Jurisdiction	Governing Legislation	Time Limit to File	Key Eligible Persons
NSW	Succession Act 2006 (NSW)	12 months from date of death	Spouses, de facto partners, children, dependants, close personal relationship
ACT	Family Provision Act 1969 (ACT)	6 months from death/grant of probate	Spouses/de factos, children, dependants, close personal relationship
QLD	Succession Act 1981 (Qld)	Notice: 6 months; Claim: 9 months	Spouses/de factos, children, dependants
WA	Family Provision Act 1972 (WA)	6 months from grant of probate	Spouses/de factos, children, dependants, certain maintained relatives

 

1. New South Wales – Family Provision & Disputed Will Claims

In NSW, eligible persons may apply to the Supreme Court of NSW under the Succession Act 2006 (NSW) if a will (or intestacy) fails to make adequate provision for them.

Eligible persons include:

• Spouses and de facto partners (current or former)
• Children (biological, adopted, sometimes stepchildren)
• Financial dependants, including grandchildren or other relatives
• Persons in a close personal relationship with the deceased

Grounds for a claim:

The applicant must show that the will (or intestacy) did not adequately provide for their proper maintenance, education or advancement in life. Financial need and the applicant’s personal circumstances are central considerations.

Process:

1. File claim within 12 months of death
2. Mandatory mediation
3. Court hearing if settlement is not achieved
4. Orders made by the Court

 

2. Australian Capital Territory – Family Provision Claims

Family provision in the ACT is governed by the Family Provision Act 1969 (ACT). Claims are made to the Supreme Court of the ACT.

Eligible persons include:

• Spouses and de facto partners
• Children (biological, adopted and sometimes stepchildren)
• Financial dependants
• Persons in a close personal relationship with the deceased

Grounds for a claim:

The applicant must show that they did not receive adequate provision for their proper maintenance and support. Financial circumstances and the size of the estate are relevant.

Process:

1. File claim within 6 months of death/grant of probate
2. Mediation
3. Court hearing if unresolved

 

3. Queensland – Family Provision Under Section 41

In Queensland, claims are brought under section 41 of the Succession Act 1981 (Qld) to the Supreme Court of Queensland.

Eligible persons include:

• Spouses and de facto partners (current or former)
• Children (biological, adopted, sometimes stepchildren)
• Dependants who were wholly or substantially maintained by the deceased

Grounds for a claim:

Similar to NSW and the ACT, the applicant must show inadequate provision for their maintenance, education and support.

Time limits:

• 6 months from the date of death to give notice of intention to claim
• 9 months from the date of death to file the claim

Process:

1. Notice within 6 months
2. Formal claim within 9 months
3. Mediation
4. Court hearing if necessary

 

4. Western Australia – Family Provision Under the Family Provision Act 1972 (WA)

Family provision claims in WA are governed by the Family Provision Act 1972 (WA).

Eligible persons include:

• Spouses and de facto partners
• Children
• Dependants
• Certain relatives being maintained by the deceased

Grounds for a claim:

Applicants must establish that they have not received adequate provision from the estate, considering their financial needs and the deceased’s obligations.

Time limit:

• Claims must be filed within 6 months of the grant of probate

Process:

1. File claim within statutory time limit
2. Mediation
3. Court hearing if required

 

Estate Planning Considerations Across All States

Regardless of jurisdiction, the best way to reduce the risk of family provision disputes is to:

• Regularly review and update your will
• Consider the needs and circumstances of likely claimants
• Obtain legal advice to ensure your will reflects your intentions and complies with relevant legislation
• Document your reasoning where you choose to depart from expected provisions

Family provision claims play a crucial role in ensuring vulnerable beneficiaries receive fair treatment. Understanding eligibility, legal grounds, and procedural requirements helps executors, beneficiaries and families navigate these disputes more confidently.

For executors, omitted beneficiaries, or those facing potential estate disputes, obtaining advice from experienced Will Dispute Lawyers can be invaluable. The team at Chamberlains is available to guide you through every stage of a contested or disputed estate matter. We’re With You.