Navigating family provision claims in New South Wales
Published on October 11, 2023 by Hanaan Indari
Family provision claims hold a significant place in the realm of estate law in New South Wales (NSW). These claims provide a legal avenue for eligible individuals to contest a deceased person’s Will, seeking a fair distribution of the estate when they believe they have not been adequately provided for. This article provides insights into what a family provision claim is, who can make such a claim, key considerations before pursuing a claim, and the time limits that apply.
What exactly is a family provision claim?
A family provision claim involves an application to the Court for a share or a greater share from a deceased person’s estate. The law allows certain individuals to challenge the distribution of a deceased person’s estate if they believe that the Will fails to make proper provision for them. The aim of these claims is to ensure that family members and dependents receive adequate financial support from the estate.
Who can make a family provision claim?
In New South Wales, section 57 of the Succession Act 2006 (NSW) (the Act) provides that the following categories of individuals may be eligible to make a family provision claim:
i. Spouse or de facto partner
A spouse (including a former divorced spouse) or de facto partner of the deceased person.
Natural, adopted, or stepchildren of the deceased, regardless of their age.
Individuals who were wholly or partly dependent on the deceased, such as grandchildren, parents, or other relatives who lived with and were financially supported by the deceased or a person who was in a close personal relationship living with the deceased person.
Key considerations before bringing a claim
Section 60 of the Act sets out considerations made by the Court with regard to whether to make a family provision order and the nature of any such order. They include among other things:
i. Your eligibility
You must understand whether you meet the criteria to bring a family provision claim based on your relationship to the deceased and your financial circumstances.
ii. Adequacy of provision
The key consideration is whether adequate provision ought to have been made for the proper maintenance, education, or advancement of your life as the eligible person. You should consider whether you were adequately provided for in the Will, considering factors like your financial needs and the size of the estate’s assets.
iii. Financial and personal situation
You must assess your own financial and personal circumstances which extends to your earning capacity, including those who you live with, to determine if pursuing a claim is necessary and in your best interest. Your age, character and conduct will also be considerations by the Court.
iv. Your relationship with the deceased
You should reflect on the nature and duration of your relationship with the deceased and whether it supports your claim for provision from the estate. The Court will consider among other things any evidence of testamentary intentions of the deceased and any monetary gifts or provision that might have been made by the deceased during their life.
v. Obtain legal advice
Contesting a Will is not an easy task, and it can be very difficult to navigate. It is important to obtain legal advice from an experience estate lawyer who can provide to you, advice tailored to your situation and guide you through the process.
Are there any time limits?
In New South Wales, family provision claims must be lodged within 12 months from the date of the deceased’s death. Failing to do this can result in the claim being rejected. However, in certain exceptional circumstances, the court may allow a claim to proceed outside the 12-month limit. It is important to understand that such an extension of time is only allowed in very limited circumstances.
Family provision claims play a central role in ensuring that the distribution of a deceased person’s estate is fair and just, especially for those who have not been adequately provided for in the Will. It is essential to understand the eligibility criteria, carefully assess your financial and personal situation, and to seek legal advice before deciding to bring a family provision claim. With the time limits for lodging a claim being 12 months from the date of death, it is important that you speak with a lawyer as soon as possible to discuss your individual circumstances and decide whether you have a viable family provision claim. You can contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page if you need advice and one of our lawyers will assist you.