Facts You Need to Know About a Family Provision Claim

Following the demise of a loved one, an unexpected Will may make your grief even worse. Maybe you weren't included at all, or your share was less than anticipated. Recovering your rightful inheritance may be possible with the aid of a family provision claim.

In New South Wales, individuals have the right to distribute their estate as they wish, a principle known as ‘testamentary freedom’. However, the Supreme Court of NSW has the power to modify the terms of a deceased person's Will when it is contested by a successful family provision claim by eligible persons under the Succession Act 2006 (NSW). A Family Provision claim should not be confused with challenging a Will. Unlike a challenge to a Will, a family provision order does not verify the validity of Will, rather determines the fairness of distribution made by the testator.

In a nutshell, a family provision claim allows eligible individuals to seek a share or a larger portion of a deceased person’s estate under section 59 of the Succession Act 2006 (NSW) if they believe they have not been adequately provided for under the will or by the rules of intestacy.

Who Can Make a Family Provision Claim?

Under section 57 of the Succession Act , the following individuals may be eligible to make a claim:

• A married spouse of the deceased at the time of death.
• A de facto partner of the deceased at the time of death.
• A child (including adopted children) of the deceased.
• A divorced spouse of the deceased.
• A dependent person who was wholly or partly dependent on the deceased and a grandchild of the deceased person or lived in the same household as the deceased person.
• A person who was living with the decedent in a close personal relationship at the time of death.

What Factors Does the Court Consider?

When determining whether to grant a family provision order, the court considers a range of factors under section 60 of the Succession Act , including but not limited to:

• The nature and length of the relationship between the claimant and the deceased.
• The financial needs and circumstances of the claimant and other beneficiaries.
• Any contributions the claimant made to the deceased’s estate or welfare.
• The size of the estate and the impact of the claim on other beneficiaries.
• Any provision already made by the deceased.
• The conduct of the claimant, including any estrangement or misconduct.

Time Limits for Making a Claim

A family provision claim must be filed within 12 months from the date of death of the deceased, as per section 58(2) of the Succession Act 2006 (NSW). Extensions may be granted by the Court in exceptional cases, but claimants should act promptly to avoid missing out.

How to Make a Family Provision Claim

The process typically involves:

1. Filing an application with necessary documents in the Equity Division of Supreme Court of NSW, outlining the reasons for the claim and payment of filling fees.
2. Mediation, which may be required to resolve disputes before a court hearing.
3. Court proceedings, where the court will decide on the claim if mediation is unsuccessful.

Possible Outcomes of a Claim

If the court finds that adequate provision was not made, it can order a family provision order, which may adjust the distribution of the estate to provide for the claimant along with a reimbursement of the legal cost.

However, if the court determines that the claimant has no entitlement, the claim may be dismissed, in which case the claimant may be ordered to pay for one or more other party’s legal costs along with their own.

If you believe you have been unfairly excluded from a will or have not been adequately provided for, seeking legal advice early can help you navigate the complexities of a family provision claim. Contact us for a free thirty-minute consultation with a lawyer.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

Photo by ugurlu photographer.