Family Provision Claims

Helping you secure your fair share

At Di Rosa Lawyers, we know that dealing with a loved one’s passing can be one of life’s most sad and difficult times. 

The situation becomes even more distressing if you feel you’ve been unfairly left out of a will or inadequately provided for.

The Succession Act 2023 (SA) sets out important rights for people who believe they have not been properly provided for. 

Di Rosa Lawyers is here to help you navigate the complexities of Family Provision claims to ensure your interests are protected.

What is a Family Provision Claim?

A Family Provision claim is an application made to the Supreme Court of South Australia seeking an order that adequate provision be made from a deceased person’s estate for your proper maintenance, education, or advancement in life.

Even if the Will appears valid, or there’s no Will at all (intestacy), the Court has the power to redistribute the estate if it finds you have not been left with adequate provision.

Who can make a claim in South Australia?

Under the Succession Act 2023 (SA), you may be eligible to bring a Family Provision claim if you fall into one of these categories:

• A spouse or domestic partner of the deceased
• A former spouse or domestic partner who was receiving or entitled to maintenance from the deceased
• A child of the deceased, including adopted or stepchildren in some circumstances
• A grandchild who was wholly or partly dependent on the deceased and who can show need
• A person who was wholly or partially dependent on the deceased and who was a member of the deceased’s household
• A person who was in a close personal relationship with the deceased and financially dependent on them

It’s important to seek legal advice promptly, as not everyone is automatically eligible, and your circumstances must fit specific legal criteria.

Strict time limits apply

In South Australia, Family Provision claims generally must be filed within 6 months of the grant of probate or letters of administration.

Missing this deadline can jeopardise your ability to claim. At Di Rosa Lawyers, we ensure your claim is prepared and filed within the required timeframes.

Factors the Supreme Court considers

When deciding a Family Provision claim, the Court looks at factors such as:

• Your financial needs and circumstances
• The size and nature of the estate
• The relationship between you and the deceased
• Any obligations or responsibilities the deceased had towards you
• Any gifts or benefits you received from the deceased during their lifetime
• Your health and age
• Competing claims of other beneficiaries

Every case turns on its own facts, and a thorough assessment is crucial.

How Di Rosa Lawyers can help

We understand that Family Provision claims can involve sensitive family dynamics and significant financial consequences. Our team at Di Rosa Lawyers offers:

Personalised advice and case assessment

• We’ll examine your circumstances and advise whether you have a viable claim under the Succession Act 2023.
• We’ll help you understand the potential benefits and risks involved.

Negotiation and mediation

• Many Family Provision claims settle out of court through negotiation or mediation, saving time, legal costs, and emotional strain.
• We’re skilled negotiators who will work to achieve the best possible settlement for you.

Litigation and representation

• If an amicable settlement isn’t possible, we have extensive experience representing clients in the Supreme Court of South Australia.
• We’ll advocate firmly and professionally to protect your interests in court proceedings.

Executor and beneficiary advice

• We also assist executors or beneficiaries defending Family Provision claims, ensuring estates are administered properly and disputes are resolved efficiently.

Transparent costs

• We offer clear advice about legal costs from the outset. In many cases, legal costs may be paid from the estate if your claim succeeds.

Why Choose Di Rosa Lawyers?

✅ Over 30 years of experience in South Australian succession law
✅ Proven record in handling complex Family Provision claims
✅ Client-focused, compassionate, and practical approach
✅ Skilled negotiation and court advocacy
✅ Clear communication and cost-effective service

Get the right advice today

If you’re concerned about your entitlement under a Will—or if you’re an executor or beneficiary facing a Family Provision claim—don’t delay in seeking advice. Time limits are strict, and early action can make all the difference.

Testator’s family maintenance

When a person draws up a will (called a “testator”), they are entitled to give away their property and assets in any manner they see fit.

However, a person who shares a close, family relationship with the deceased, and who has been left out of the will as a beneficiary, can make an application against the estate if they face undue financial hardship, as part of what used to be called testator’s family maintenance.

The Act gives the Supreme Court the power to award to an eligible claimant part of the deceased’s estate, even though the deceased had left nothing, or very little, to that person in the will.  The test applied by the Court is whether the deceased failed to provide adequately for the applicant’s proper maintenance, education or advancement in life.

Who can claim under the act

The following persons can make an application to the Court for provision:

• a spouse of the deceased
• a domestic partner of the deceased as declared by the Court under the Family Relationships Act
• a child (natural or adopted) of the deceased
• a child (natural or adopted) of a spouse or domestic partner of the deceased, who was wholly or partly maintained, or was legally entitled to be wholly or partly maintained, by the deceased immediately before her or his death
• a parent, brother or sister of the deceased who satisfies the court that they cared for, or contributed to the maintenance of the deceased during the deceased’s lifetime
• a grandchild of the deceased.

How does the Court decide?

Inheritance claims are very complex and the Court has to balance a number of considerations before it will order greater provision to an eligible claimant.  Some of the relevant factors include:

• the size of the estate (for example, the smaller the estate, the less likely that the Court will make substantial redistribution between beneficiaries)
• the age, health and financial circumstances of the claimant (for example, the Court is much more likely to award greater provision to a younger, poorer family member where there are other family members with greater shares who are financially independent)
• the relationship between the applicant and the deceased (for example, the Court is much less likely to give a black sheep child a greater provision out of the estate if that child’s conduct has been disentitling in some way).

Time limits apply

If you feel you are entitled to make a claim under the Act, please be aware that you must make a claim (ie bring Court proceedings) within six months of the grant of Probate or Letters of Administration.

How we can help

If you intend to make a claim, we urge you to contact our office immediately so that a formal notice of your claim can be sent to the executor or administrator of the estate and the beneficiaries of the estate.

We will be able to determine whether your claim can be settled by negotiation, in which case any settlement can be documented in the form of a Deed of Family Arrangement, or whether Court proceedings are necessary within the six month time limit allowed under the Act.  The earlier you contact us the better.

Similarly:

• If you are an executor of an estate, we can advise you on what you need to do on behalf of the estate;
• If you are an existing beneficiary of the estate who will be affected by a claim, we can advise you if it is worth defending such a claim or negotiating a settlement.