Yes, an Executor Can Make a Family Provision Claim

The rules that govern these claims quietly answer the question most executors are afraid to ask. The Supreme Court Rules 1970 (NSW), Schedule J cl 1(a), say a family provision application must join any administrator as a defendant, unless the plaintiff is the sole administrator.

That exception only makes sense if the rules expected the executor to sometimes be the plaintiff. No provision in the Succession Act or the Supreme Court Rules requires an executor to renounce first.

Timing is more forgiving than most people assume. The Succession Act 2006 (NSW), s 58(1), allows an application whether or not administration of the estate has been granted, so you do not have to wait for probate, and holding the grant does not shut you out.

Eligibility is unchanged by the executor role. The six categories in s 57(1) apply to you as they apply to anyone else, and our guide on how to contest a will covers them in full. The 12-month limit runs from the date of death, not from the grant.

More: Can You Extend the 12-Month Family Provision Deadline?

The Real Problem Is the Conflict, Not the Eligibility

The uncomfortable part is not whether you are allowed to claim. It is that on the day you file, you are asking for money out of an estate you are legally bound to protect.

A fiduciary owes a duty of loyalty not to place themselves in a position of conflict with the person they act for, as a judge of the Supreme Court of NSW put it in a published paper. As executor, you owe that duty to the estate and its beneficiaries. As plaintiff, you are asking to reduce what those beneficiaries receive.

That does not make the claim improper, and it is not, by itself, a breach of duty. NSW law treats the conflict as something to be managed procedurally rather than punished.

The NSW Government tells executors the role requires them to stay neutral if there are any disputes. Neutrality is the one thing a claimant cannot offer. Executor misconduct and removal are a different question, covered in our guide on contesting a will in NSW.

Who Defends the Claim if You Are the One Bringing It

The Court has a standard answer to this, and it arrives as one order. Left alone, you would be defending the estate against yourself, then turning up to a compulsory mediation to negotiate with yourself.

The answer is a contradictor, somebody with standing and reason to argue the other side. The Supreme Court paper The Family Provision Jurisdiction records that where a legal personal representative claims in a personal capacity, the Court ordinarily gives directions for representation of the estate, so a contradictor exists.

That paper names the three procedural routes the Court commonly uses:

• A grant of administration under the Succession Act 2006 (NSW), s 91, for the purposes only of permitting the application to be dealt with
• A representative order under the Uniform Civil Procedure Rules 2005 (NSW), r 7.10, which covers executors whose interest in the proceedings is adverse to the interests of the estate
• A special grant of administration ad litem, limited to conducting the proceedings until a general grant is made

Rule 7.10 lets the Court appoint a representative only with that person’s consent, so somebody willing has to exist. The Court’s practice note treats that appointee as the administrator, so the estate keeps a defender.

Renouncing Is One Option, Not a Requirement

The surprise for most executors is that the cut-off point is not the grant of probate. It is the moment you start dealing with the estate’s assets.

Renunciation is done on UCPR Form 123, filed with no fee in the Supreme Court of NSW Probate List, and it carries a declaration that you have not intermeddled in the estate. Once you have intermeddled, that declaration is unavailable, which commonly happens well before probate issues. Renouncing also ends the role outright under the Probate and Administration Act 1898 (NSW), s 69.

Where there is a co-executor, there is a softer option. Section 41 of the same Act lets the Court grant probate to one executor while reserving leave to the other to apply later, on evidence of 14 days’ notice of the intended proceedings. Your co-executor takes the grant, becomes the defendant, and the estate stays represented.

If a grant has already issued to you, renunciation is gone. The routes are revocation, removal and replacement, or leaving the grant in place and asking the Court to order representation.

More: Executor’s First 30 Days Checklist: What to Do When Someone Dies in NSW

Stop Distributing the Estate Before You Claim

This is the trap that costs executors their own money. Paying out a legacy while planning a claim can leave you personally exposed.

The Succession Act 2006 (NSW), s 93, protects a legal representative who distributes at least six months after the death, after giving a notice of intended distribution and letting the stated period expire. Under s 93(1)(e), the representative must also have no notice of any application or intended application for a family provision order at the time of distribution.

An executor who intends to claim knows of one intended application, their own. Whether that private intention counts as notice for s 93 is arguable rather than settled, because s 93(3) requires notice of an intended application to be in writing and signed in accordance with the rules.

That is not an argument to be having after the money has gone out. The Court can restrain distribution under s 62(3) while a claim is on foot, so treat the day you decide to claim as the day distributions stop, and seek directions rather than rely on the shield.

You Must Notify the Other Beneficiaries

If you are hoping to file quietly and tell your family later, that option does not exist. The Notice of Claim is a rule, not a courtesy.

Schedule J of the Supreme Court Rules requires the administrator to serve a Notice of Claim on the surviving spouse, every child of the deceased, everyone entitled to share in the distributable estate and anyone who may be an eligible person. 

The administrator must then swear an affidavit setting out the estate’s assets and naming every person notified. Under s 61, the Court can disregard another possible claimant’s interests only if they were served.

Settlement runs through the same gate. Practice Note SC EQ 07 requires consent orders finalising a family provision application to state that the administrator’s affidavit and the affidavit of service of the notice have been filed. Your siblings will find out, formally and in writing, and it is better that they hear it from you first.

Who Actually Pays the Legal Costs

Ask most claimants who pays, and they will say the estate does. The Supreme Court’s own published paper describes that assumption about the “usual” costs orders as commonly misplaced.

Succession Act 2006 (NSW), s 99(1), lets the Court order costs to be paid out of the estate. It is a discretion, not an entitlement, and it does not displace the general rule that costs follow the event. Legal Aid NSW puts the consequence plainly, warning that an unsuccessful applicant can be ordered to pay their own costs and the defendant’s costs as well.

Size matters too. The practice note allows costs to be capped, including where the net distributable value of the estate is under $1,000,000, and both sides file costs estimates on an indemnity basis up to and including mediation. Run a modest estate to a hearing and the costs can consume the very provision you were arguing about.

How Empower Probate Lawyers Can Help

An executor who wants to claim is making two decisions at once, one about the claim itself and one about who holds the estate while it runs. Getting the second decision wrong is what turns a straightforward claim into a costs argument.

We act for executors bringing family provision claims and for estates defending them in probate and will disputes across NSW. We advise on executor duties where a conflict has appeared, on contesting a will where you are the person left short, and on the grant of probate itself where representation still has to be sorted out.

Call 1300 481 161 for an initial consultation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.

Frequently Asked Questions

Can I contest the will if I am the executor named in it?

Yes, provided you are an eligible person under the Succession Act 2006 (NSW), s 57(1). The Supreme Court Rules expressly contemplate a plaintiff who is also the sole administrator.

Do I have to resign as executor before I can make a claim?

No. Nothing in the Succession Act or the Supreme Court Rules requires renunciation before claiming. What the Court requires is that the estate be represented by someone who can argue against you.

I have already been granted probate. Can I still claim?

Yes. Section 58(1) allows an application whether or not administration has been granted. Renunciation is no longer open to you, so representation is handled by revocation, removal, or a court order.

Who defends my claim if I am the one bringing it?

Not you. The Court uses one of three routes, being a limited grant under s 91, a representative order under rule 7.10, or a grant of administration ad litem.

Do I have to tell the other beneficiaries I am making a claim?

Yes. The administrator must serve a Notice of Claim on the surviving spouse, every child and everyone entitled to share in the estate, then swear an affidavit naming every person notified.

There are two of us named as executors. What happens?

Your co-executor can take the grant alone with leave reserved to you, or you can renounce on Form 123. Either way, your co-executor defends the claim and the estate stays represented.

How successful are people at contesting a will?

No court or government source publishes a success rate for NSW family provision claims. Mediation is compulsory unless the Court orders otherwise for special reasons, and outcomes turn on the statutory factors.

I am the main beneficiary as well as the executor. Is there any point?

Only where other people take under the will or on intestacy, because a claim shifts what would otherwise go to them. A sole executor who is the sole beneficiary has nobody to claim against.