Family Provision Applications (FPAs) are applications made to the court for a share, or a greater share, of an estate of a deceased person. This article will discuss recent cases, emerging judicial trends and the practical implications of these trends for those considering bringing a FPA or who may have to respond to a FPA.  

There has been a significant increase in FPAs in recent years. In 2023, over 1000 FPAs were filed in New South Wales, accounting for 25% of proceedings commenced in the Equity division of the NSW Supreme Court (see Ari Katsoulas, 'Preparing and Defending Family Provision Claims in New South Wales', Two Wentworth Succession Conference, 23 March 2024). It is a similar story across other Australian jurisdictions.   

Whilst an individual's eligibility to commence an FPA and the timeframe in which it must be commenced varies across jurisdictions, the applicant must generally be a spouse, child, grandchild or former spouse of the deceased. 

In NSW, a claim is required to be filed within 12 months from the date of death. 

In Victoria, an application must be made within 6 months after the date of the grant of probate or letters of administration  

In Queensland an applicant must give their intention to apply within 9 months after the death of the deceased.  

There are a few key reasons for the increase in FPA applications, including:  

1. Increased wealth: Rising house prices and compulsory superannuation have seen the wealth of those born before 1970 reach unprecedented levels (see KPMG: Australia's wealth gap widens as asset growth concentrates at the top, Media Release, 11 May 2026)The level of wealth in a deceased estate and the potential return incentivises people aggrieved with their inheritance, or lack of, to bring FPAs. 

2. Cost of living: Increases in real estate prices and persistent inflation since COVID-19 have added to cost of living pressures. For many people, receipt of a substantive inheritance is the only means by which they expect their financial position to improve. Unfortunately, reality doesn't always meet expectation when it comes to inheritances, which often leads to FPAs being brought. 

3. Blended families: In the 2021 Census, 12% of couple families with dependent children were either step or blended families, and about one in ten couples with dependent children were step or blended families. The children and/or grand-children of the deceased are often aggrieved when they discover that their deceased parent or grandparent has left their estate or a larger portion of their estate to the surviving spouse.  

Pending the jurisdiction, the Courts consider specific matters when determining an FPA. In NSW, these considerations are set out in section 60(2) of the Succession Act 2006 (NSW).  

There are a few key emerging trends that have arisen in the adjudication of FPAs in NSW: 

1. Over‑exaggeration. Courts are filtering out claims by adult grandchildren or distant relatives who overstate their closeness or financial reliance on the deceased. In Curtis v Curtis [2024] NSWCA 136, the NSW Court of Appeal explicitly overturned a trial judge's order that had granted provision to grandchildren.  

2. Scrutinising dependence. In Broadus v Cradduck [2025] NSWSC 402, an adult grandson brought an FPA against his grandfather's estate, arguing that he qualified as an eligible person. The Court dismissed the application, holding that eligibility under the Succession Act 2006 (NSW) is not established merely because an applicant is a grandchild, and that dependency must be demonstrated by evidence. The Court found that a moral claim alone is insufficient and that speculative or inflated "ambit claims" are unlikely to succeed. 

3. Need vs expectation. The judgment in La Selva v La Selva [2025] NSWSC 78 highlights the level of scrutiny the Supreme Court now applies to families who attempt to siphon estate assets away prematurely.  

4. Costs. In Pethers v Pethers (No 2) [2025] NSWSC 561, the Court emphasised that costs do not automatically come out of the estate. The Court stated if a person brings a weak, unmeritorious, or tactical FPA they face the risk of personal adverse cost orders or having to pay the executor’s costs on an indemnity basis.  
   
   In Lord v Craig [2026] NSWSC 17 the deceased's estate had a net value of approximately $135,000. When faced with the prospect of legal costs exceeding the value of the estate, tyhe Court made an order limiting total recoverable legal costs to $22,500 (inclusive of GST), whilst emphasising that, proportionality is an overriding consideration in modest estates. 

5. Investigating estrangement. Traditionally the Courts treated a long-standing family breakdown as a total bar to a claim. There has, however, been a shift towards examining what caused the estrangement. For example, if a child was driven away by the abusive, irrational, or difficult behaviour of the deceased, the Courts are increasingly unlikely to penalise the child by dismissing an FPA. Financial need and the "moral duty" of the parent may trump the fact that the parties did not speak for decades. 
   
   In Steinmetz v Shannon (2019) 99 NSWLR 687, the Court found that estrangement is just one factor among many to be taken into account in determining FPAs. Other factors to be examined include why the relationship deteriorated, whether the deceased contributed to the estrangement, whether reconciliation was attempted, the size of the estate, any competing claims and whether a continuing moral obligation existed. 

Irrespective of emerging trends, precedent and legislation indicates that the well-established legal principles underpinning FPAs are:  

• adult children do not possess an automatic entitlement to inherit; 

• financial need remains highly relevant in determining FPAs and applicants who cannot demonstrate genuine need will have difficulty succeeding; 

• the Court weighs competing claims of spouses and other beneficiaries; 

• proportionality of legal costs is critical to recovery of legal costs from the estate; 

• evidence is critical: detailed financial evidence, budgets, medical material and proof of dependency often determine the outcome; 

• the deceased's testamentary freedom remains an important consideration; and 

• family provision legislation is not designed to rewrite wills merely because they appear unfair. 

Whilst recent cases do not represent a departure from long established precedents governing the determination of FPAs, they illustrate a clear judicial emphasis on proportionality, evidence based advocacy, and preserving testamentary intentions wherever adequate provision has already been made.  

For applicants and practitioners, the lessons are clear: 

• maintain proportional legal costs, or risk paying your own way; 

• detailed evidence of financial need is the cornerstone to success; 

• inflated ambit claims will not succeed; and 

• address the reasons for any estrangement directly. 

For advice or assistance in relation to family provision applications, estate disputes and estate administration, please contact our Wills, Estates & Succession Planning team.