Family Provision Claims NSW

Sometimes, the death of a loved one can bring disappointment to expectant beneficiaries who may not receive adequate provision from a deceased person’s estate. Family provision claims allow a person to make a legal claim for their entitlements. Find out more about family provision claims in New South Wales, the process, who is eligible, and what factors the court considers. Let’s take a closer look.

What Is A Family Provision Claim?

When a person believes they are not adequately provided for in a will and did not receive proper maintenance, education or advancement in life, they are entitled to make a family provision application. Provisions within the Act allow an eligible person, usually a family member, to contest a will or make a claim if the deceased died intestate. The legislation helps correct the unfair treatment of people dependent on the deceased person. It ensures that eligible people receive adequate provisions, a share or a larger share of the deceased person’s estate, after the death of a family member, even if they are not a beneficiary in the will.

Who Can Make A Family Provision Claim?

If a person believes they have been left out of a will and have not received adequate provisions, they may be eligible to make a family provision claim. It can be challenging to define adequate provision as it is complex, and circumstances vary with each case. The court will consider their circumstances, such as their:

• Relationship with the deceased person
• Financial circumstances
• Size of the deceased’s estate
• Deceased relationship with other eligible persons

Who Is An Eligible Person?

Only an eligible person can apply for a family provision claim, and the NSW Succession Act 2006, states who can make an application. The act states that an eligible person must have had the following relationship with the deceased person:

• Wife or husband (at the time of the deceased’s death)
• De facto relationship (at the time of the deceased’s death)
• Child – the act states that the following children may be eligible: biological, adopted, born into a defacto relationship, or if the deceased had a parental responsibility to the child
• Former wife or husband
• Wholly or partly dependent grandchild, or a member of the household
• A close personal relationship, other than marriage

If a sibling, parent, or stepchild lived with and was dependent on the deceased, they may be eligible to make a claim.

What Is Intestate?

Intestate is when a person dies without making a final will, or when a will can not be located. In these circumstances, an administrator is appointed by the court to distribute the deceased’s estate as per the rules contained in the relevant state legislation. The court will grant letters of administration, which are legal documents that allow the administrator to represent the deceased estate. A family provision order summons will generally be served on an executor of the estate, or administrator if there was no will.

What Is The Family Provision Claim Process?

In New South Wales, a family provision application is made by filing a summons and detailed affidavit to the Supreme Court, and applicants will need to pay a filing fee. The matter will be listed for a compulsory mediation or settlement conference. Attempts to settle the matter outside the court via alternate dispute resolution methods are preferred. If the matter is not resolved through mediation, it will listed for a final hearing at the Supreme Court, evidence must be submitted, and a hearing allocation fee paid. A judge will make the final determination after considering all the affidavit evidence and submissions. The process can take at least 12 months from the original application date. A family provision claim can be time-consuming, and legal costs can be expensive. Legal advice must be obtained early to ensure the correct process is followed. Legislation varies from state to state, and applicants must find a lawyer specialising in the law of the state where the claim is submitted. Applicants who live overseas or interstate are still eligible to claim in New South Wales if the deceased person lived and owned assets in NSW.

When Can A Claim Be Made?

Time limits for making a family provision claim vary depending on where you live. In NSW for example, a claim must be made within 12 months after death. In some circumstances, the court may allow exceptions if sufficient cause has been provided. The court may consider factors such as reasons for the delay, whether the estate has been distributed, circumstances of the estate and whether any other beneficiaries will obtain an unfair advantage if an extension is approved.

What Factors Will The Court Consider?

Being an eligible person does not automatically guarantee that someone is entitled to provisions of the estate. In New South Wales, the court must consider several matters before approving a family provision claim, and each case is different. Section 60 of the Act lists the court considerations, and they include the following:

• Relationship between the applicant and the deceased
• Any responsibilities or obligations the deceased person had to the applicant or other beneficiaries
• Deceased’s estate – nature and extent – including any liabilities
• Applicants financial resources – current and future needs and earning capacity
• The financial situation of any person living with the applicant
• Applicants disabilities – physical or mental disabilities
• Age of the applicant
• Applicant’s contribution to the conservation, improvement, and acquisition of the estate, where they have not already received adequate consideration
• Any provisions made to the applicant by the deceased during their lifetime
• Evidence of any statements or testamentary intentions of the deceased
• Whether the applicant received any maintenance from the deceased at the time of their death
• Character and conduct of the applicant before and after the deceased person’s death
• Whether anyone else is liable to support the applicant
• Relevant Aboriginal or Torres Strait Islander customary laws
• Any other matters the court considers relevant

Summary

If a person believes they have been left out of a will and have not been adequately provided for, they may consider making a family provision claim. Provisions within the Act allow a person, usually an eligible family member, to contest a will or make a claim if the deceased died intestate. Only an eligible person can make an application for a family provision claim. NSW legislation states who can make a claim. The relationship with the deceased person may be any of the following: spouse, defacto partner, child, former spouse, wholly or partially dependant grandchild, member of the household or any other person who had a close personal relationship except marriage. Time limits apply. In NSW, for example, a family provision claim must be made within 12 months after the deceased person’s death. A Supreme Court judge will make the final determination if mediation is unsuccessful, and the process can take a minimum of 12 months from the application date. A family provision claim can be time-consuming, and legal costs can be expensive. To ensure you follow the correct process, you must obtain legal advice.

FAQs

What Are The Factors For Family Provision Claims?

Being an eligible person does not automatically guarantee that someone is entitled to a provision from the deceased’s estate. In NSW, there are several matters that a court must consider before approving a family provision claim, such as the relationship between the applicant and the deceased, the nature of the estate, obligations or responsibilities the deceased person had to the applicant and the applicant’s financial situation. Section 60 of the Act lists all the factors the court must consider when determining a family provision claim.

What Is The Family Provision Of The Succession Act?

Provisions within the Act allow a person, usually an eligible family member, to contest a will or make a claim if the deceased died intestate. The legislation helps correct the unfair treatment of people dependent on the deceased person. It ensures that eligible people receive adequate provisions after the death of a family member, even if they were not a beneficiary in the will.

Who Is An Eligible Person?

If a person believes they have been left out of a will and have not been adequately provided for, they may be eligible to make a family provision claim. It can be challenging to define adequate provision as it is complex, and circumstances vary with each case. The NSW Succession Act 2006 states who is permitted to make a claim, the relationship they had with the deceased person may be any of the following:

• Wife or husband (at the time of the deceased’s death)
• De facto partner (at the time of the deceased’s death)
• Child – the act states that the following children may be eligible: biological, adopted, born into a defacto relationship, or if the deceased had a parental responsibility to the child
• Former wife or husband
• Wholly or partly dependent grandchild, or a member of the household
• Close personal relationships other than marriage