Costs, State Rules and 2026 Checks
Contesting a will: family provision claims, who can claim and the time limits in each state
Family provision claims in NSW (12 months from death, notional estate), Victoria (6 months from the grant), Queensland and WA, who is eligible, costs and how claims usually end.
A family provision claim asks the Supreme Court to order that an eligible person receive provision, or more provision, from a deceased estate because the will (or the intestacy rules) did not adequately provide for them. The time limits are short and differ by state: in NSW the claim must be made within 12 months after the date of death (Succession Act 2006, Chapter 3); in Victoria within 6 months after the grant of probate or administration (Administration and Probate Act 1958, Part IV); in Queensland written notice must be given within 6 months of death and proceedings started within 9 months after death (Succession Act 1981, s 41(8)); in WA within 6 months after the grant (Family Provision Act 1972). Courts can allow late claims in some circumstances, but the late claimant must justify the delay and cannot reach property already properly distributed.
Family provision is often called "contesting a will", but it does not challenge whether the will is valid. A challenge to validity (lack of capacity, undue influence, improper signing) is a different proceeding.
Who can claim
| State | Eligible people (summary) |
|---|---|
| NSW | Spouse; de facto partner at death; child; former spouse; a person who was wholly or partly dependent and is a grandchild or was a member of the household; a person in a close personal relationship at death |
| Victoria | Spouse or domestic partner; child, stepchild or person who believed they were a child of the deceased; former spouse or partner (with limits); registered caring partner; grandchild; spouse or domestic partner of a child who died within a year; a member of the household, each subject to tests of dependency or need |
| Queensland | Spouse (including de facto and in some cases former spouse), child (including stepchild), and dependants as defined |
| WA | Spouse or de facto partner; former spouse or de facto partner receiving or entitled to maintenance; child; grandchild in some cases; stepchild in some cases; parent in some cases |
In every state, being eligible only gets you through the door. The court then asks whether adequate provision for your proper maintenance, education and advancement in life was made, considering the size of the estate, your needs and resources, the relationship with the deceased, contributions you made, other claims on the estate and your conduct.
NSW: 12 months and notional estate
NSW has two features that make claims more powerful than elsewhere:
- Time limit: 12 months after the date of death, unless the court allows a later claim for sufficient cause (s 58).
- Notional estate: the court can designate property outside the estate as notional estate so it can be used to satisfy an order. It looks at "relevant property transactions", where the deceased did, or failed to do, something that meant property ended up with someone else for less than full value. Typical examples are a super death benefit paid directly to a nominated person, assets held as joint tenants passing to the survivor, and gifts made in the years before death. There are time windows and conditions (transactions within 3 years of death made with the intention of defeating claims, within 1 year where the deceased had a moral obligation to provide for the applicant, and transactions taking effect on death), and the court must weigh the interests of the people who received the property.
Because of notional estate, planning that moves assets outside a will (joint tenancy, super nominations, family trust distributions) does not reliably defeat a NSW claim.
Victoria: 6 months after the grant
Since reforms in force from 1 January 2015, Victorian eligibility is defined by categories and the court must consider whether the deceased had a moral duty to provide for the applicant. Some categories must show they were wholly or partly dependent on the deceased. Adult children can still claim, but the court considers their own resources and needs. The 6-month period runs from the grant, not the death, so an executor who delays applying for probate also delays the start of the clock.
Queensland and WA
- Queensland: notice of intention to claim within 6 months of death, and proceedings within 9 months of death. An executor who distributes after 6 months without notice of a claim is generally protected, which is why the notice matters.
- WA: the Family Provision Act 1972 sets a 6-month period from the grant. The court can extend time.
- Other jurisdictions: SA (Inheritance (Family Provision) Act 1972), Tasmania (Testator's Family Maintenance Act 1912), the ACT (Family Provision Act 1969) and the NT (Family Provision Act 1970) have their own lists of eligible people and time limits. Check the current Act.
What a claim costs
Most claims settle at a mediation, which courts generally require before a hearing. Costs depend on how far the claim goes. Illustrative only:
| Stage | Illustrative legal costs for one party |
|---|---|
| Initial advice and letter to the executor | A few thousand dollars |
| Filing, affidavits and disclosure | Several thousand to tens of thousands |
| Mediation | Often $10,000 to $40,000 in total to that point |
| Contested hearing | Can exceed $100,000 per party |
Costs orders vary. In small estates, courts are conscious that costs can consume the estate, and NSW and Victoria have rules that let the court limit costs that are disproportionate to the estate or the claim. Do not assume the estate will pay your costs if the claim fails.
Worked example (illustrative)
A NSW estate is worth $900,000. The will leaves everything to the deceased's second wife. His adult daughter from his first marriage, who has a disability and a low income, files a claim 10 months after his death. His super ($400,000) was paid directly to the wife under a binding nomination.
- The daughter is eligible as a child.
- The court can consider designating the super payment as notional estate, so the pool is potentially $1.3 million, subject to the notional estate rules.
- At mediation the parties agree that the daughter receives $220,000, and each side bears its own costs. The executor pays her from the estate after the court or the parties formalise the settlement.
Had she lived in Victoria, there is no notional estate, so only the $900,000 estate could be used, and the deadline would have run from the grant, not the death.
Executors: when it is safe to distribute
Executors who distribute before the claim period ends can be personally exposed. In NSW, publishing a notice of intended distribution and waiting until 6 months after death without notice of a claim gives protection, although a claim made within 12 months can still affect undistributed property and notional estate. In Victoria, an executor should wait 6 months from the grant. When in doubt, wait.
FAQ
Can I claim if the deceased left me something?
Yes. The question is whether the provision was adequate, not whether you received nothing.
Can I claim against an estate where there was no will?
Yes. Family provision applies to intestate estates too, which is useful for people who are not entitled under intestacy, such as some stepchildren.
Is it worth claiming against a small estate?
It can be, but costs can quickly exceed what is at stake. Get an early estimate and consider negotiating with the executor before filing.
Can someone prevent a claim by signing a release?
In NSW a release of family provision rights is only effective with the court's approval. Other states have their own rules, and a private agreement may not bind the court.
Sources
- NSW Legislation — Succession Act 2006, Chapter 3 (ss 57, 58, notional estate in Part 3.3)
- Victorian Legislation — Administration and Probate Act 1958, Part IV
- Queensland Legislation — Succession Act 1981, s 41
- WA Legislation — Family Provision Act 1972
- Supreme Court of NSW — family provision list and notices
- Related: binding nomination failures, intestacy, overview, free legal help
