The passing of a loved one is often an extremely emotional and overwhelming experience and things can be made even more difficult if there are disputes regarding the Estate.

Deceased’s Will vs Beneficiary Entitlements

In addition to the grieving process, the situation following someone’s passing can be impacted by challenges that may arise in regards to the deceased’s Will and their intended distribution of the Estate. This can be particularly stressful if there is a beneficiary, or party, who believes that they are entitled to a larger share of the Estate than they were provided for in the Will, or perhaps they were left out of the Will all together.

While preparing a Will is an important step towards making sure that Estates are to be distributed according to the deceased’s wishes, it does not necessarily mean that the final distribution will always occur exactly as set out in the Will.

The preferred scenario for any estate dispute is to reach a negotiated agreement with the executor and/or the other beneficiaries. However, unfortunately the dispute is not always able to be resolved in that way. If you have been left out of a Will, or believe that you are entitled to more than you have been provided for, and you are unable to reach an agreement, you may be eligible to make a family provision claim as an “eligible person” under Section 57 of the Succession Act 2006 (NSW).

Who is an ‘Eligible Person’ for an Estate Dispute?

A family provision claim is an application made to a court by an “eligible person” for a share or larger share from an estate of a deceased person.

In New South Wales, an “eligible person” includes the following:

  • A spouse of the deceased at the time of the deceased’s death
  • A de facto partner of the deceased at the time of the deceased’s death
  • A child of the deceased
  • A former spouse of the deceased
  • A person who:
    • was at any particular time wholly or partly dependent on the deceased, or
    • is a grandchild of the deceased who was at any particular time wholly or partly dependent on the deceased, or
    • was a member of a household of which the deceased was a member
  • A person with whom the deceased was living in a “close personal relationship” at the time of the deceased’s death.

Some individuals will find it easy to establish they are an “eligible person” based on their relationship with the deceased (e.g. current spouses or children of the deceased). 

Whereas, other individuals, such as a grandchild, de facto or other dependant, will be required to provide evidence to establish that they fall into one or more of the above categories.

Defining a De Facto Relationship for an Estate Dispute

In order for a de facto partner to be considered an “eligible person” they must have been in a “de facto relationship” with the deceased at the time of the deceased’s death as defined in section 21C of the Interpretation Act 1987 (NSW).

A person is in a “de facto relationship” with another person if they have a relationship as a couple living together and are not married or related by family.

All factors of the relationship are taken into account, including:

  • The duration of the relationship
  • The nature and extent of the couple’s common residence
  • Whether a sexual relationship exists
  • The degree of financial dependence or interdependence, and any arrangements for financial support, between the couple
  • The ownership, use and acquisition of assets
  • The degree of mutual commitment to a shared life
  • The care and support of children
  • The performance of household duties, and
  • The reputation and public aspects of the relationship.

None of the above matters are essential in determining whether two individuals are in a de facto relationship but all play a part in the court being able to determine the person’s “moral claim” and demonstrate a “financial need” and the provisions left for them (or not left for them, as the case may be) are inadequate to meet the claimant’s proper maintenance, education or advancement in life.

Applications for Other Claimant’s to Prove Their Entitlement & Needs

A person that does not qualify as a de facto partner may be eligible to make an application on another basis (e.g. a dependent household member of the deceased).

Grandchildren, other household members of the deceased, a person living in a close personal relationship with the deceased, and any other person who was dependent upon the deceased person at some time, may also be able to dispute their provision under the estate and make a family provision claim.

These types of claimants will also need to establish a “moral claim” and demonstrate a “financial need” and the provisions left, or not left, for them are inadequate to meet their proper maintenance, education or advancement in life.

Let’s take a look at grandchildren as an example. For a grandchild to be considered an “eligible person” for a family provision claim they must show they were wholly or partly dependent on the deceased at any time.

It is not enough that a grandchild’s dependence is an indirect result of the grandparent providing support or maintenance for their own adult child thereby indirectly benefiting the grandchild. 

To establish dependency in the relationship between a grandchild and the deceased:

  • the dependency must be immediate and direct
  • the gifts or benefits received by the grandchild from the grandparent must be of such regularity and significance that it can be said that the grandparent assumed responsibility for the support and welfare of the grandchild.

What Else Does the Court Consider when Considering an Estate Dispute Claim?

In addition to meeting the conditions for a family provisions claim, and/or proving a “moral claim” and “financial need”, the court will consider various factors when making it’s ruling. These may include things such as:

  • the relationship of the claimant and the deceased (as explained above)
  • the reasons why the claimant was left out of the will
  • what contributions the claimant made towards the estate during the will-maker’s lifetime
  • how dependent the claimant was on the will-maker during their lifetime
  • the size of the estate
  • the circumstances of the other beneficiaries

It is important to be aware that family provision claims must be made within 12 months from the deceased’s death. 


Estate disputes can be a complex and sensitive issue to navigate, which is why it is so important to engage the services of professional and experienced estate lawyers. 

If you believe that you may be entitled to make a claim on a deceased person’s estate, or you require advice in relation to family provision claims or other estate dispute matters, please contact our team of Estate Lawyers on (02) 9223 9166 or submit an online enquiry to schedule an appointment and discuss your individual situation.