Family provision claims form one of the most emotional areas of property and estate law in New South Wales, often arising from family relationships that have already broken down long before a parent dies. A recent Supreme Court decision in NSW demonstrates that even where a beneficiary is not excluded from a will, they may still challenge the provision made to them. From a conveyancing and estate planning perspective, this issue is especially relevant for families in Blacktown, Riverstone, Kellyville, Rouse Hill, and Castle Hill, as property often represents the most valuable asset of an estate. It also highlights the implications for buyers, sellers, and agents dealing with inherited property, particularly where delays and disputes affect the estate or reduce the funds available.
In the estate considered by the Court, the deceased distributed assets between three daughters and a friend, who was also appointed as executor. The eldest daughter received a 50% share, the second daughter 15%, and the youngest daughter also received 15%. The remaining 20% was left to the friend. The youngest daughter had been estranged from her father for approximately 15 years prior to his death and argued that her 15% share was inadequate. Under section 59 of the Succession Act 2006 (NSW), the Court must consider two key questions before altering a will:
- Whether the applicant is eligible to make the claim.
- Whether the provision made is adequate for their proper maintenance and advancement in life.
The Court confirmed that estrangement is not a bar to making a claim; however, the reasons for the estrangement and the nature of the relationship are important considerations. In this case, it was found that the deceased had met his moral obligation by leaving the claimant 15%, and that the provision was fair and reasonable.
The key takeaway from this decision is the financial risk of bringing a weak claim. It is often assumed that legal costs in estate disputes will be paid from the estate, but this case demonstrates that this is not always the case. As the claimant did not establish a strong financial need or sufficient legal basis for a larger share, her claim was dismissed and she was ordered to pay the defendant’s legal costs. In such circumstances, a beneficiary may lose a significant portion, or even all, of their inheritance to legal fees. The consequences extend beyond emotional disappointment. A reduced or lost inheritance may affect future property purchases, refinancing plans, or settlement timelines. Before commencing a family provision claim, it is essential to obtain proper legal advice and maintain realistic expectations.
Julian and Renee are specialists in property transactions across New South Wales at Flash Conveyancing, with a strong focus on matters involving deceased estates and family provision risks. As this case illustrates, disputes over inheritance can directly affect property timelines, reduce available funds, and create uncertainty for all parties involved. With extensive experience working alongside local councils including Blacktown, Hawkesbury, Blue Mountains, The Hills, Hornsby, and Parramatta, they assist clients in navigating estate-related property transactions with clarity and confidence. Whether managing the sale of inherited property, coordinating with executors, or addressing risks arising from potential claims, they ensure each transaction is handled efficiently, with a clear understanding of both the legal and financial implications.
