Introduction

In Australia, the freedom to distribute an estate through a will is balanced by a moral and social obligation to provide for certain family members. When an eligible person believes a will has failed to make adequate provision for their maintenance and support, they can initiate a family provision claim to challenge the terms of that will.

While financial need is a primary factor in any family provision claim, it is not the only consideration the court will examine. This guide explores the various non-financial factors that courts assess, including the nature of the relationship between the applicant and the deceased, contributions made to the estate, and the circumstances of other beneficiaries, to determine whether a will provides a just and adequate outcome.

Understanding the Basis for a Family Provision Claim

The Moral Duty of a Will-Maker

A family provision claim is founded on the legal principle that a will-maker has a moral duty to provide for certain eligible people from their estate. This concept acknowledges that specific social and moral obligations can extend beyond a person’s lifetime.

When assessing a claim, the court evaluates whether the will makes adequate provision for the applicant’s proper maintenance, education, and advancement in life. This assessment is central to determining if the will-maker has fulfilled their moral duty. The court will consider this obligation even if the will contains a statement explaining why a particular person was excluded.

This duty serves as a cornerstone of succession law in Australia. For a successful claim:

• The claimant must establish that the deceased had a moral duty to provide for their proper maintenance and support
• They must demonstrate that the deceased failed to fulfil this duty in their will

For certain eligible persons, like a grandchild, demonstrating this moral claim is a specific requirement to proceed with a family provision claim.

Balancing Testamentary Freedom & Family Responsibilities

The law recognises the principle of testamentary freedom, which gives individuals the right to decide who will inherit their assets. This freedom allows a will-maker to:

• Distribute their property according to their own wishes
• Choose beneficiaries based on personal preference

However, this freedom is not absolute and is balanced against the will-maker’s moral and social responsibilities to provide for their family and dependants. A family provision claim arises from the tension between these two principles:

• A will-maker’s freedom to dispose of their property
• Their duty to support eligible individuals

The court respects a will-maker’s intentions and will not alter a will simply because its terms appear unfair, though there are separate legal grounds for challenging the validity of a will itself. In fact, the wishes of the deceased are a primary consideration for the court. A judge will only interfere with a will to the extent necessary to ensure adequate provision is made for an eligible person, affirming the will-maker’s decisions where possible. A carefully considered will that reflects a deliberate and rational choice is more likely to be respected by the court.

What the Court Will Consider Beyond Financial Need

The Relationship Between the Applicant & the Deceased

The nature and quality of the relationship between the applicant and the deceased are central to any family provision claim. The court examines the entire history of the relationship to understand the context of the will and the moral obligations owed.

A close, supportive, and long-standing connection can strengthen a claim, demonstrating a deep bond that might warrant provision. However, a difficult or strained relationship does not automatically defeat a claim.

The court will investigate the reasons for any estrangement. For instance:

Case Example	Key Finding / Implication
Hansen v Hennessey [2014] VSC 20	A claim may fail if the applicant’s conduct is considered a “repudiation of the relationship” with the deceased.
Joss v Joss [2020] VSC 424	A history of dependency created by the deceased can override even extreme negative behaviour from the applicant.

Contributions by the Applicant to the Estate

The court also carefully evaluates any contributions the applicant made to the deceased’s estate or welfare during their lifetime. These contributions are not limited to direct financial support and can take various forms.

The court will consider a wide range of contributions, including:

Type of Contribution	Description / Examples
Financial Contributions	Direct payments that helped increase the estate’s value, such as contributing to a property purchase or a business investment.
Non-Financial Contributions	Unpaid work, caregiving for the deceased during old age or illness, or making improvements to a property through personal labour.
Family Support	Acting as a homemaker or caregiver, which enabled the deceased to accumulate wealth.

An applicant who can demonstrate significant contributions may have a stronger case, as it can show that they helped build the very estate from which they are seeking provision.

The Deceased’s Stated Reasons for Their Decision

A will-maker may include specific reasons for excluding an individual or providing them with a limited inheritance. The court is required to consider any such statements, as they offer insight into the deceased’s intentions. These reasons can provide context for the decisions made in the will.

However, the deceased’s stated reasons are not the final word. The court will assess whether these reasons are fair and accurate in light of all the evidence.

For example, in Brimelow v Alampi [2016] VSC 135, the deceased expressly stated she had “no meaningful relationship” with her daughter, yet the court still made provision after finding a moral duty existed. The court’s role is to determine if adequate provision has been made, and it may override the deceased’s wishes if they are found to be based on a misunderstanding or are otherwise unjust.

The Applicant’s Character & Conduct

The character and conduct of the person making the family provision claim can also be a relevant factor in the court’s decision-making process. The court may consider the applicant’s behaviour towards the deceased throughout their relationship. This assessment helps to paint a complete picture of the family dynamics and the moral claims on the estate.

Poor conduct by the applicant does not necessarily disqualify a claim, but it will be weighed against other factors. Ultimately, the court balances:

• The applicant’s conduct
• Their financial need
• Their relationship with the deceased
• Any contributions they made to the estate

The court considers whether the applicant’s actions were so severe as to negate the deceased’s moral duty to provide for them.

How Courts Assess Claims from Different Applicants

The Unique Position of an Adult Child

When an adult child makes a family provision claim, courts recognise that community expectations differ from those for a minor child. Generally, there is no expectation that a parent will support their child for their entire life. However, the court will consider making provision if the adult child was still a dependant of the parent.

Even if an adult child is not financially dependent, a court may find that a will-maker had a moral duty to provide for them. This is particularly relevant in situations where the child has fallen on hard times.

In such cases, the court may decide that provision is necessary to create a “buffer against contingencies,” especially if the child has been unable to accumulate:

• Superannuation
• Other assets for retirement

The Hurdles for a Grandchild Making a Claim

A grandchild faces a significant hurdle when making a family provision claim, as they are not automatically considered an “eligible person” in the same way a spouse or child is. To qualify, a grandchild must typically prove that they were “wholly or partly dependent” on the deceased will-maker at some point. This requirement is a key feature of legislation such as the Succession Act 2006 (NSW).

Proving dependency involves more than demonstrating a close and loving relationship. Instead, courts look for evidence of a sustained relationship of financial, economic, or material reliance.

As illustrated in the case of Broadus v Cradduck [2025] NSWSC 402, the following may not be enough to establish dependency:

• Occasional or sporadic financial gifts, even if generous
• Allowing the grandchild to live in the home from time to time as a guest
• Providing casual assistance or hospitality

Ultimately, the court must be satisfied that the grandchild relied on the deceased for their maintenance and support. Without clear proof of this dependency, a family provision claim from a grandchild is likely to fail before the court even considers the adequacy of the provision in the will.

The Importance of Mediation to Contest a Will

Why the Court Mandates Mediation for an Estate Dispute

In a family provision claim, the court will typically refer the involved parties to mediation. This step is designed to provide an opportunity for everyone to reach a settlement before the matter proceeds to a formal and often costly court hearing.

The court system encourages the consensual resolution of disputes. Mediation offers a structured and voluntary environment where parties can negotiate a solution without the pressure of a courtroom.

While only a small number of family provision claims proceed to a final hearing, mediation is a mandatory step in the process for most cases.

The Advantages of Settling a Family Provision Claim Early

Attempting to settle a dispute through mediation before making a family provision claim can provide significant benefits for all parties. An early resolution helps preserve the value of the estate and reduces the emotional toll on the family.

The primary advantages of settling a claim early include:

Advantage	Explanation
Saving Money	Resolving a matter through negotiation or mediation avoids the substantial legal costs associated with a full court hearing.
Saving Time	The court process can be lengthy, sometimes taking over a year. Mediation can lead to a much faster resolution.
Reducing Stress	Estate disputes often create significant tension between family members. Settling early can help ease this conflict and preserve relationships.

Conclusion

A family provision claim involves more than just financial need, requiring courts to weigh a will-maker’s moral duties against factors like the applicant’s relationship with the deceased and their contributions to the estate. From the unique position of an adult child to the dependency hurdles faced by a grandchild, the legal process carefully considers all circumstances and encourages resolution through mediation before a final court decision.

If you believe you have been inadequately provided for in a will and are considering a family provision claim, contact PBL Law Group today for trusted expertise. Our specialised wills and estates law firm can provide the clear guidance you need to understand your legal position and navigate this complex process with confidence.

Frequently Asked Questions