GO TO THE NEW SITE 'changefpa.com.au'


"The legislation is a boon for practitioners as it greatly increases the number of persons who can make a claim" January 1998 "The Law Institute Journal (Victoria)" P36 when discussing changes in the Victorian Wills Act 1997 (making it more like NSW)

"There are now three certainties - death, taxes and mandatory mediations in Family Provision cases in the Supreme Court of New South Wales."(Hon. Justice P A Bergin, Chief Judge in Equity 2009)

"George Orwell's Big Brother could not have done better than the reformers who entitled the Act which gave claims against the estate to mistresses and lovers, ‘The Family Provision Act 1982’. The Act might have been more properly entitled ‘The Act to Promote the Wasting of Estates by Litigation and Lawyers Provision Act 1982".Francis C Hutley, Roy A Woodman and Olive Wood, Cases and Materials on Succession (3rd ed, Olive Wood and Noel Hutley, 1984)


Most people wrongly think they have the right to leave there wealth to whomever you choose and no one can challenge their will.

Under the Family Provision Act  (now the Succession Act NSW) and similar Acts in every other state and teritory, the judge will likely ignore your Will, and give your savings away to whoever they see fit, with little or no regard to your wishes, or your reasons for the decisions you have made based on your lifetime of experience.

Don't think I'm exaggerating this happens every week of every year, look at the statistics page here.

If you believe that if you have no dependents you ought to have the right to leave your wealth to whomever you choose, read on, then you need to express this belief by supporting change to the Family Provision Act.

How can I change this law that denies me the rite to choose who inherits my wealth when I die? (Stop someone challenging my will)

There is only one way.  Write to your local MP and ask that they get the law changed.  I's not as bad as you may think, they do work for you after all.  Start by clicking here  or send me an Email.

This site is a resource for people who wish to see the Family Provision ACT's in Australia changed  (now the Succession Act (NSW))  changed. It provides information to support you when talking to your State MP or the Attorney General.


The Problem

Testamentary freedom to distribute your wealth as you wish has effectively been removed in Australia and it's too easy to challenge a will because you think you have been hard done by.

The Supreme Courts of Australia have have interpreted the Family Provision Acts  (now the Succession Act NSW)  too broadly. Through time and precedent  the courts have effectively over written the original intent of the act. The FPA (family provisions act) originally created to protect dependents is now used to impose a code of “moral duty”created arbitrarily by the court. If you said to most people the law said that they MUST provide in there will for the “ maintenance, education and advancement in life of there adult children they would think you were crazy.  The parliament originally included a break on judicial freedom over a will by including "behaviour dis-entitling" as a reason to reduce or extinguish a claim in the original and most subsequent legislation.  Today I cant imagine any behaviour short of murder being considered "behaviour dis-entitling" by the court.

The Effect

Every month valid wills have the distribution of assets altered. Some times this is done through the courts, but more often estates are blackmailed with high legal costs to pay people or pay more to people than will maker ever intended to. People are making bad financial decisions in an attempt to circumvent the law. I estimate over $20 million is lost in costs to beneficiaries defending wills in court against the FPA each year in NSW alone. With a further $40 million lost in costs when disputes are settled out of court.

Some Facts

The FPA has been recognized as defective for over a decade. The New South Wales Law Reform Commission and others have all written reports outlining changes needed to the law. Many have suggested removing non-dependent adult children from the list of valid claimants.

Most people think there is little or no chance of this law affecting them.  In fact you have the same chance of being in a dispute over a will as being murdered and we devote a lot of effort protecting our safety.  See the statistics page for more statistics.

The Solution

There is only one way to fix this law, contact you state member and tell them to get this law fixed.

The New Zealand Law Commission and the New South Wales Law Reform Commission have both addressed some of the failing in the law of wills and made recommendations. Some of the recommendations are still bases on case law that does not reflect community expectations. Striking off non-dependent children from the list of valid claimants would have a two fold affect,

  1. It would greatly restore testamentary freedom.

  2. I would have no effect on claims by spouses affected by intestacy or poorly worded wills.


I believe the Act should be changed to disallow adult children as recommended in "REPORT 110 Uniform succession laws:family provision" by the New South Wales Law Reform Commission. The NSWLRC has been working with governments across Australia since before 1997 with almost no tangible outcome.

This report is a good basis for change but this is a policy decision for government and if left to the legal fraternity, it will result in "Lawyers law" a compromise position guided by precedent and esoteric argument. State attorneys have failed to act on the recommendations of the NSWLRC for over 15 years. I believe that changing the legislation wording from child, to non-adult child, would be the best solution until uniform succession laws (checked by the legislature ) can replace the current law. It is also evident that a study is required to asses the community attitudes to legal intervention to valid wills. Studies on community attitudes were used in the “Intestacy and Family Provision Claims on Death” by the Law Commission (UK). 

From THE SCOTTISH LAW COMMISSION Report 215 Succession.

"If there is a will and the deceased's surviving spouse or civil partner is disinherited, the Report recommends that they will be entitled to a legal share amounting to 25% of what they would have inherited if the deceased had died intestate.  If children are disinherited, the Report offers two possible scenarios.  First, the children would be entitled to a legal share amounting to 25% of what they would have inherited if the deceased had died intestate.  Second, and more radically, dependent children should be entitled to a capital sum calculated by reference to their maintenance needs:  but otherwise a person would be free to leave his estate as he or she chose and his wishes could not be disturbed by claims from adult children.  Which scheme should be adopted is again a political question for the Scottish Parliament."

I don't think this second option is radical at all I think this is what most reasonable Australians think is already the case and are surprised when they find out that they have so little freedom.



Allow me to provide you with some background on the FPA (Family Provisions Act  (now the Succession Act (NSW) ). The Act originally began its life in New Zealand as the "Family Protection Act 1908". The primary propose was the protection of widows and children from wills that would leave them destitute. An example often cited is of a father that leaves his entire estate to the gentleman's club when he had a wife and young children that needed support. One solution to this problem was to limit the freedom of how a will could distributed in an estate to 1/3 to the widow 1/3 to the children and 1/3 free for the deceased as they wish. This solution was seen to be overly interfering with the freedom of a person to distribute their wealth as they saw fit. As a compromise solution the Family Protection Act 1908 came into effect in New Zealand and later spread to Australia and the UK. I believe that when the Act was written the parliament expected the court to take a more general definition of children to only include those that you would expect the deceased to have responsibilities for. Over time, the definition of an eligible person expanded to accommodate changes in the make-up of the modern family (de-facto and the like). Most would agree that this was a positive reflection of society's expectations. The current situation is that the FPA is used to even out "The unfairness of life". The court is giving little weight to the wishes of the deceased or responsibility for actions taken by people claiming against the estate. The court will often say in judgments "The Act does not empower the Court to re-write the deceased’s will in accordance with its own ideas of justice and fairness." But then proceed to do just that. Families will have their disagreements and people will be unhappy with the choices their children make. On the other hand, is it right to expect a person to be responsible for their children from cradle to grave?

Here is a fictional example of what we see in the courts today.

The deceased has two children, child 1 works and saves and places themselves well for their future. Child 2 has a problem holding onto money and tends to waste what they do get. Child 2 has also fallen out with their parent as they resent their advice and have not been in contact for 20 years. Both children are both in their 40's. In the will, the parent leaves $300,000 to child 1 and $20,000 to child 2, saying in the will that "I give child 2 only $20,000 as they have abandoned me and have shown that to give them more would be a waste as they are not good with money" Here are the probable outcomes if child 2 decides to contest the will.
Mediation:>Child 1 will be advised by their lawyers that child 2 has a good chance of winning in court and it would be best to pay them off. Child 1 pays child 2 $100,000 plus $15,000 for child 2's lawyers, plus $15,000 for the estate lawyers, leaving child 1 with $170,000. 

Court: It is two years since the parent’s death. Child 2 receives $100,000 because child 1 is in less need. Child 1 has to pay the legal cost of child 2 which are now $40,000 child 1's costs are $45,000 child 1 receives $115,000, I have outlined some of the deficiencies in the FPA and in particular the definition of a child. I believe that the Act does not reflect community expectation of testamentary freedom . The law is being used to compensate for the failing of intestacy law and this costs estates and the government millions of dollars. Only a fraction of claims go to the Supreme Court as the majority of estates will be extorted for large sums, (eg 20-30% of small estates less than $500K, and 10-15% of larger estates), in an attempt to mitigate large legal costs. As the NSW supreme Court tends to publish costs in their judgments I will use them as an example.
I believe the Act should be changed to disallow adult children as recommended in "REPORT 110 Uniform succession laws:family provision" by the New South Wales Law Reform Commission. Sydney 2005 ISSN 1030-0244 (Report). The NSWLRC has been working with governments across Australia since before 1997 with almost no tangible outcome. This is a policy decision for government and if left to the legal fraternity, it will result in a compromise position guided by flawed precedent and esoteric argument. State attorneys have failed to act on the recommendations of the NSWLRC for over 15 years. I believe that changing the legislation wording from child, to non-adult child, would be the best solution until uniform succession laws (checked by the legislature) can replace the current law.

Changes to the Act that I believe would better align the Act with community expectations.

Inheritance (Family Provision) Act 1972(3) South Australia< <6—Persons entitled to claim under this Act The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act: (a)the spouse of the deceased person; (b)a person who has been divorced from the deceased person; (ba) the domestic partner of the deceased person;
(c)a child non-adult child of the deceased person;
(g)a child of a spouse or domestic partner of the deceased person being a child non-adult who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
(h)a child of the child of the deceased person being a child non-adult who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
(i)a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;
(j)a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.

This is how the Commonwealth defines a child for support etc.


Commonwealth Consolidated Acts
CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 1(4)
Interpretation--happening of child support terminating events
(1) A child support terminating event happens in relation to a child if:
(a) the child dies; or
(b) the child ceases to be an eligible child under regulations made under subsection 22(1); or
(c) the child turns 18; or
(d) the child is adopted; or
(e) the child becomes a member of a couple;










Thank you for your support.

Let me know what you think, even if you disagree.

changefpa@gmail.com