Family provision claims are one of the most common sources of estate disputes in New South Wales. Even where a Will is carefully drafted and the Will maker’s wishes are clear, certain eligible people may still challenge an estate if they believe they have not been adequately provided for. Such claims can be costly, emotionally draining, and can significantly delay estate administration.
While family provision claims cannot always be prevented entirely, thoughtful estate planning can substantially reduce the risk of a successful challenge.
What Is a Family Provision Claim?
Under the Succession Act 2006 (NSW), specific categories of people can apply to the Supreme Court for a greater share of an estate if they believe they have not received “adequate provision for proper maintenance, education or advancement in life.”
Eligible applicants include:
- A spouse or de facto partner
- Children (including adult children)
- Former spouses
- Certain dependents or household members
- People in a close personal relationship with the deceased
The Court considers a range of factors, including the applicant’s financial position, their relationship with the deceased, the size of the estate, and the reasons behind the deceased’s testamentary intentions.
Even straightforward estates can become vulnerable to claims, particularly where family dynamics are complex and a Will alone may not address competing expectations.
Practical Strategies to Reduce the Risk of a Claim
Careful planning can significantly reduce the likelihood of a successful claim.
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Clear, Well Drafted Instructions
A professionally prepared Will ensures your intentions are expressed clearly and in legally enforceable terms. Ambiguity is one of the most common causes of litigation.
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Prepare a Statement of Wishes
A non‑binding Statement of Wishes (or “letter of reasons”) can explain:
- Why someone has been excluded
- Why certain beneficiaries are favoured
- Any financial assistance previously given
Although not determinative, the Court often gives weight to well documented reasoning.
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Consider a Testamentary Trust
For vulnerable or high-risk beneficiaries, a testamentary trust can provide:
- Controlled distributions
- Protection from waste, bankruptcy, and family law issues
- A structured way to meet long-term needs
A trust may also reduce arguments over lump‑sum inheritances.
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Review Your Estate Plan Regularly
Life changes – families grow, relationships shift, assets change. A Will should be updated after major events such as:
- Marriage or separation
- Birth of a child or grandchild
- Purchasing or selling property
- Significant gifts or loans
Regular updates help ensure your estate plan reflects current circumstances and reduces the risk of disputes.
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Address Moral Claims Proactively
Where an eligible person has a moral claim (such as an estranged adult child in financial need),consider:
- A modest legacy
- A conditional bequest
- A trust arrangement
- Documented reasons for a more limited gift
In some cases, providing something, even if modest, can reduce litigation risk more effectively than complete exclusion.
How Our Firm Can Help
Our Future Planning team works closely with clients to:
- Build tailored estate plans that reflect their wishes
- Identify people who may pose a litigation risk
- Prepare comprehensive documentation to support testamentary decisions
- Advise on trusts, business succession, blended families, and superannuation
- Strengthen the estate’s position in the event of a claim
- Assist executors in responding to claims if they do arise
Thoughtful planning today can help ensure your estate is protected tomorrow and that your loved ones are supported through a smooth, efficient process.
To find out more contact Lilly: lilly@morganenglish.com.au
