skip to Main Content

If you have been left out of a Will, or you believe you are entitled to more from the estate than you receive, we can help.

Did your loved one not have capacity at the time of making their Will? Were they under pressure? You may be able to challenge their Will. In NSW, claims for provision or a greater share of a deceased person’s Will are called Family Provision Claims and the relevant legislation is the Succession Act 2006 (NSW) (“the Act”).

Contact Us Today To Discuss Your Matter

Family Provision Claims

You can make a family provision claim if you are an eligible person (as defined in the Act) and have been left out of a Will, or did not receive what you thought you were entitled to receive. In the case of an intestate estate (where there is no Will), the Act also sets out who is a beneficiary and entitled to a share of the deceased estate.

We can help you work through this process and determine if you’re an eligible person and assist and advise you on what is involved in making a claim. There are strict time limits that apply when making a claim so it is important to get legal advice as soon as possible.


Lack of Capacity

If you believe that at the time of making their last Will, the deceased did not have the mental capacity to make a Will, you may wish to consider challenging the validity of the Will. This will require evidence about the deceased’s mental capacity around the time of making the Will which shows that they did not understand or have the capacity to make a Will at that time.

Undue influence

Where a person may have been influenced by another person to make a Will which did not reflect their true wishes, a Court may find that they have been unduly influenced and declare that Will to be invalid. For example, this type of claim can occur when a family member or friend assisted with the preparation or execution of the Will.

How do I stop someone from making a Family Provision Claim on my Will?

If you are worried that an estranged child, grandchild, previous partner, or a dependant may make a claim on your Will, there are steps that can be taken to protect your wishes at the time of preparing your Will. For more information on Wills, click here.

Contesting A Will FAQs

Family provision claims are commonly referred to as contesting a Will. Specifically, making a family provision claim refers to where an eligible person makes a application to vary the provision made under the Will or on intestacy when they feel like they have been left out, or not received their fair share of the Estate.

To make a claim, you must be an ‘eligible person’, being:

  1. a person who was the spouse of the deceased at the time of the deceased’s death,
  2. a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death,
  3. a child of the deceased,
  4. a former spouse of the deceased,
  5. a person:
    1. who was, at any particular time, wholly or partly dependent on the deceased, and
    2. who is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household of which the deceased was a member,
    3. a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

Generally, an eligible person must commence their claim in the Supreme Court of New South Wales within 12 months after the date of death. This time limit can be extended in very limited circumstances. If you think you may have a claim, you should obtain legal advice urgently.

The Court looks at many factors, including but not limited to the assets of the Estate, the financial circumstances of all parties, the relationship between the parties and the deceased, contributions made to the deceased’s Estate and any other relevant factors. This is not an exhaustive list and every matter is considered on a case by case basis, so it is important to obtain legal advice regarding making a claim.

Our People

At O'Hearn Lawyers, our people are important to the success of our clients. Our Partners and staff are committed to providing the best legal service to achieve all you need to for a positive outcome.

What our clients say

O’Hearn Lawyers have been a fixture in the Newcastle community for over three decades.

From our humble beginnings in September 1988 on Nelson Street, Wallsend, our family company has grown exponentially over the years.

Start Your Confidential Case

Ben & the team at O’Hearn Lawyers are not only legally competent and commercially savvy but they are friendly, fast & efficient. I use Ben & his team for Estate Planning, Conveyancing Service, Business related documentation including Buy Sell Agreements, Partnership & Lease Agreements. I have no hesitation in referring family, friends and clients to O’Hearn Lawyers.

Rating : 5

Recently I was in need of legal advice and a friend referred me to Maryanne McGrath. Maryanne was very helpful in my matter and took considerable time to work through all aspects of my problem. With her advice I was able to make a decision regarding my enquiry. I feel that the decision I made was an informed one and covered all of my concerns. I found Maryanne to be very professional in her approach to me and my matter. She also took the time to listen and discuss all of my concerns. Nothing was rushed and I was given time to feel comfortable with my decision. Also during the course of our meetings, several other issues arose and we were able to address those as well. Thank you Maryanne.

Mr and Mrs Bartlett
Happy Clients
Rating : 5

As a long-standing client of O’Hearn Lawyers, I can gladly confirm that they are professional, diligent and committed. Ben and the team go above and beyond to make sure that they are available when we need assistance, and make sure the job is done efficiently and effectively to achieve results.

Rating : 5

Just a quick note to say thank you to the family law team for assisting my mum throughout this tough process. She always felt like she was in great hands with them both and is very thankful for all that they did. If we know anyone needing legal advice in the future, we will highly recommend them.

Happy Client
Rating : 5

"I found O'Hearn Lawyers to be easy and quick in responding to my case. I'm glad I found them, they went over and above to get a great outcome and I can't recommend them enough!"

Rating : 5

I thank the team at O’Hearn Lawyers: notably Leah, for her outstanding customer service. Leah went above and beyond to ensure all our needs were met. The team at O’Hearn Lawyers, as a whole, are very friendly and accommodating in a very stressful and demanding time for us and their professionalism, commitment and reassurance ensured the process went smoothly, stress free and ensured all our requirements were met. Thank you so much for everything you have done!

Kent and Kirsty
First Home Buyers
Rating : 5

More Legal Services

Legal help, without the confusion.

The law is complex and it can be confusing and intimidating. But it doesn’t have to be. We understand the detail and we’re able to tailor a strategic approach and deliver legal advice to meet your specific needs.

From Wills & Conveyancing to Commercial Law, at O’Hearn Lawyers we’re on your side.

Start Your Confidential Case