Written by Deanne Kindis
When someone passes away, their assets are typically distributed in accordance with their Will. In New South Wales (NSW) if certain eligible family members or dependents of the deceased feel that they have not been adequately provided for in a deceased’s Will, they can contest it by making what is known as a “family provision claim” with the Supreme Court of NSW.
What is a family provision claim?
Family provision claims are overseen by the Succession Act 2006 (NSW) (“the Act”) and allow eligible individuals to request from the Court a greater share of a deceased person’s estate if they believe they have not received enough provision for their proper maintenance, education, and advancement in life. The purpose of these types of claims is to ensure that eligible individuals receive an appropriate share of the deceased’s estate even if they were omitted from the Will completely or feel that they should have received more of the estate than what the Will provides for them.
Who is eligible to make a family provision claim?
An individual must be considered an “eligible person” Under Section 57 of the Act. This includes:
“
a) a person who was the spouse of the deceased person at the time of the deceased person’s death,
b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
c) a child of the deceased person,
d) a former spouse of the deceased person,
e) a person
I. who was, at any particular time, wholly or partly dependent on the deceased person, and
II. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
”
What happens when a family provision claim is made?
In NSW an eligible person has 12 months from the date of the deceased’s death to file a family provision claim in Court.
Generally, when a family provision claim is made, parties are encouraged and sometimes ordered by the Court to engage in mediation to resolve the matter. If attempts at mediation are unsuccessful, the Court will proceed with evaluating the claim and will rely on evidence to consider factors including but not limited to the size and nature of the estate, the relationship between the deceased and eligible person, the eligible persons age, health and financial position, the needs and circumstances of other beneficiaries, any obligations or promises made by the deceased to the eligible person and any contributions that the eligible person made to the deceased’s estate during their lifetime.
Considerations and the path forward:
Individuals seeking to make a family provision claim must be mindful that these claims are highly emotional and typically occur during what may already be quite a sensitive time for the parties involved. There is also no guarantee that if the matter proceeds to Court, the Court will grant greater or any provision to the eligible person. The Court will typically consider the specific facts and circumstances of each matter and will use this to determine an outcome that they believe provides a fair and just balance between the eligible persons claim and the existing provisions set out in the deceased’s Will.
A person seeking to make a family provision claim should promptly pursue the advice of an experienced Wills and Estates solicitor to ascertain the strength of their eligibility, the potential time and legal costs involved and their potential prospects of success.
At Willis & Bowring Solicitors our dedicated Wills and Estates team can assist you with navigating the complexities of Family Provision Claims. We can work with you to understand your unique circumstances and can provide advice and strategic guidance to help you comprehend your legal rights and options moving forward.
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