Who Can Make a Claim Against a Deceased Estate? Understanding Your Rights & What Happens Next

Losing a loved one is a deeply emotional experience, and dealing with their estate can feel overwhelming — especially if you believe the will does not reflect what they would have wanted or does not provide enough support for you or other family members.

Many Australians are surprised to learn that a will is not always the final word. In certain situations, the law allows eligible people to make a claim against a deceased estate if they have been left without adequate provision for their proper maintenance and support.

These types of claims, often called family provision claims, exist to ensure fairness. While every person has the right to leave their assets to whomever they choose, the law also recognises that some relationships carry obligations — for example, to a spouse, child or someone financially dependent on the deceased. If the will (or the lack of one) doesn’t make proper provision, the courts can step in to adjust how the estate is distributed.

Although each Australian state and territory has its own legislation, the overall principles are similar. You must be eligible to apply, and you must be able to show that the will did not provide adequately for your needs based on your circumstances. The process is not automatic, nor is it about rewriting the will completely — rather, it’s about ensuring a fair and reasonable outcome.

Below, we explain in simple terms who can make a claim, what courts consider, typical time limits, and why getting timely advice is important.

Who Is Generally Allowed To Make A Claim?

While the exact criteria differ across states and territories, there are several groups who are commonly eligible to bring a family provision claim.

1. Spouses and De Facto Partners

This includes:

• A husband or wife at the time of death
• A de facto partner who was living with the deceased in a genuine domestic relationship

These individuals are almost always eligible to apply because the law recognises the financial and emotional interdependence that usually exists in these relationships.

2. Children

The term “children” typically includes:

• Biological children
• Adopted children
• In some states, step-children
• Adult children

Even adult children who are financially independent may be eligible; however, the outcome will depend on factors like their financial needs and the size of the estate.

Step-children may qualify automatically in states such as Victoria and Western Australia, while in others they must show financial dependence or that they lived in the deceased’s household.

3. Former Spouses or Partners

Most states allow former partners to apply in limited circumstances — usually where:

• A family law property settlement was never finalised
• There are special factors that warrant an application

These claims are less common but can arise when financial or emotional ties continued after the relationship ended.

4. Other Dependants

Many estate laws also recognise other people who were financially supported by the deceased or who shared a household with them. This may include:

• Grandchildren
• A parent, sibling or other relative living in the same household
• A person who relied financially on the deceased
• Someone in a “close personal relationship,” such as a long-term carer or companion

These categories vary by state, and eligibility often depends on showing some level of financial dependence or ongoing support.

Being Eligible Is Only The First Step

Even if you fall into one of the groups above, the Court won’t automatically change the terms of the will. You also need to show that the will (or intestacy outcome, if there was no will) left you without adequate provision for your “proper maintenance and support.”

To decide this, courts across Australia look at several similar factors.

What The Court Takes Into Account

1. Your relationship with the deceased

This includes the nature of the relationship, its closeness, duration, and whether the deceased had any obligations towards you.

2. Your financial situation

Courts consider:

• Income
• Assets and liabilities
• Dependants
• Future financial needs
• Health and age

Someone in financial difficulty may have a stronger claim than someone who is financially comfortable.

3. The size and complexity of the estate

A court cannot grant you provision if there are no assets available. Larger estates provide more scope for adjustments.

4. Competing claims from other beneficiaries

The court balances your needs against those of other people the deceased had obligations to, such as a spouse or other children.

5. Contributions you made

This could include:

• Caring for the deceased
• Working in a family business
• Improving or maintaining property
• Financial contributions

6. Any gift or support you received during the deceased’s lifetime

If the deceased made substantial contributions to your finances while alive, this may be considered.

7. Estrangement or misconduct

Long-term estrangement or serious misconduct may reduce or defeat a claim — though courts assess these issues carefully and compassionately.

The court’s goal is not to rewrite the will, but to reach an outcome that a “wise and just” person would see as fair.

Understanding What A Family Provision Claim Does and Doesn’t Do

A successful claim may result in:

• A lump sum payment
• A larger share of the estate
• A redistribution of assets

However, it does not:

• Void the entire will
• Punish other beneficiaries
• Automatically give the applicant everything they want

It is a balancing exercise — one that depends heavily on each individual situation.

Strict Time Limits Apply

Each state has its own deadline for making a family provision claim. These range from three months to one year after the grant of probate or letters of administration.

Courts can extend the deadline, but only in limited circumstances, such as:

• Not knowing about the death in time
• Serious illness
• Other exceptional reasons

However, extensions are not guaranteed, which is why acting promptly is essential.

What To Do If You Think You Have A Claim

If you believe you were not adequately provided for in a will, or you are unsure whether you may be eligible, the best next step is to seek advice before time limits pass or estate assets are distributed.

A wills and estates lawyer can help you:

• Understand whether you qualify as an eligible applicant
• Assess whether your situation may justify a claim
• Guide you through what evidence is required
• Explain the likely outcomes
• Help negotiate with executors or other beneficiaries
• Represent you if Court involvement becomes necessary

Because the rules differ by state, local advice is important — especially for blended families, estranged relationships, or situations involving financial dependency.

Wilson Pateras Can Assist With Deceased Estate Administration

Family provision claims exist to ensure fairness when a will doesn’t fully reflect a person’s responsibilities or relationships. While navigating estate matters can feel stressful, understanding your rights — and the limits of the law — can help you make informed, confident decisions.

Whether you are a spouse, child, former partner, grandchild, or someone who relied on the deceased for support, you may have options available if you believe the will did not provide adequately for your needs.

At Wilson Pateras, we support families and individuals navigating the complexities of wills, estates, and inheritance disputes. If you’re unsure about your eligibility, need help understanding your rights, or want clarity on the next steps, our experienced team is here to help.

Get in touch with our team, and we’ll walk you through your options and ensure you receive practical, compassionate support tailored to your circumstances.