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The Top 5 things to know about lodging a claim against a Will in NSW - Article 3

The Top 5 things to know about lodging a claim against a Will in NSW – Article 3

Published on March 17, 2021 by Hanaan IndariHanaan Indari

1. In New South Wales, Family Provision claims are made by your lawyer filing a summons and a supporting affidavit in the Supreme Court of New South Wales.

2. It is important to note that it is not required that Probate or Letters of Administration be granted before bringing a family provision claim.

3. The summons sets out what orders your lawyer is seeking on your behalf be made by the Court. For those left out of a will such an order may be that provision be made out of the estate for maintenance, education and advancement in life.

4. The supporting affidavit will cover eligibility to make a claim and will contain sufficient information about the above listed matters to be considered by the Court. There is a preform affidavit on the Supreme Court of New South Wales website which serves as a guide as to what should be included in the supporting affidavit. It is helpful to the Court and the claim if annexures are included to substantiate the information contained in the affidavit.

5. It is also required that the applicant file a Notice of Eligible Persons which identifies those persons who are potential Eligible Persons to make a claim on the Estate and a further affidavit setting out an estimate of the costs and disbursements up to and including mediation.

    You can read more about the rules of lodging a Family Provision Claim,  who is an Eligible Person and the issues the Court will consider on our other articles in this series:

    Article 1 – Top 5 things to know about Wills & Families – including what to do when you’ve been left out or treated unfairly.

    Article 2 – Once you’ve lodged a Family Provision Claim, the Top 5 things to Know About What the Court Will Examine?

    What If I think I have a claim about a Will?

    It is important for you to act fast if you think you have been left out of a Will or treated unfairly as a claim needs to be lodged within 12 months of a person dying. Carroll & O’Dea has a team of Wills and Estates experts who will be able to help you with any questions you may have in relation to making a family provision claim.

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