8 Things to Consider When Making a Family Provision Claim in NSW
The Purpose of Family Provision Claims in Will Contesting Cases
When making a will, a person has the choice to leave their estate to anyone they wish. This is known as ‘testamentary freedom’.
A family provision claim is an application to the Supreme Court of New South Wales for a share (or a greater share) of the estate of a deceased person. If successful, it has the effect of overriding the original testamentary freedom, altering the terms of a person’s will after their death.
An applicant must first satisfy the Court that they are an ‘eligible person.’ Only an eligible person, such as a spouse, child, de facto and other classes of people, may bring a claim. An applicant must then satisfy the Court that the deceased’s will did not make adequate provision for their ‘proper maintenance, education, or advancement in life’. A court will only make an order if the court is satisfied of the claim.
An eligible person may bring a claim by filing with the Court an application against a deceased person’s estate under section 59 of the Succession Act 2006 (NSW). A claim may be brought where the deceased died with a valid will, or in the case of intestacy.
1. Who is Eligible to Make a Family Provision Claim
The Succession Act 2006 (NSW) sets out the requirements for an eligible person wishing to obtain a family provision order in New South Wales.
In order to make a claim, a person must be entitled to make a claim. The applicant must first satisfy the Court that they are an ‘eligible person‘. Close relationships such as a spouse or de facto of the deceased person, and child of the deceased person, are all eligible persons and are able to make a claim.
Other people may be considered eligible but must also satisfy the Court that there are ‘factors which warrant the making of an order’. These include former spouses, a wholly or partly dependent grandchild or member of the deceased’s household, or a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death. These claimants need to satisfy the Court that the deceased had a moral obligation to continue to provide for them during their lifetime.
A wills and estate lawyer can help you understand if you are an eligible person to make an application for family provision.
2. Time Limits for Filing a Claim in NSW
Statutory timeframe in NSW
There is a strict timeframe for contesting a will and making an application for a family provision claim. A family provision claim must be filed with the Court within 12 months of the deceased’s date of death.
Seeking extension of time
The time limit (or more correctly the ‘limitation period’) to family provision claim in New South Wales may be extended by court order if sufficient cause is shown or with the consent of the parties to the application being made out of time.
‘Sufficient cause’ means a sufficient explanation, justification or excuse for the delay: Cobb v Cobb  NSWSC 97 at .
It is recommended to seek legal advice if you want to make a claim more than 12 months after the deceased’s death.
3. Adequacy of Provision in the Will
Determining adequate provision
Persons wishing to file a claim must be able to prove they were not adequately provided for in the deceased’s will. This involves satisfying the Court that the deceased was required to make adequate provision for you and failed to do so in their will. The Court assesses the evidence and decides whether the deceased made adequate provision for the applicant.
Evaluating your financial needs
The Court may have regard to the financial resources and needs of the applicant or of any named beneficiary of the estate.
An applicant with substantial resources of their own may face difficulty in satisfying a Court that the deceased’s will did not make adequate provision for their proper maintenance, education, and advancement in life compared to a claimant who for example is on the pension.
4. The Size and Nature of the Estate
Assessing estate assets and liabilities
The size and nature of the deceased’s estate is central to a will dispute. Generally, the larger the estate, the greater scope there is to seek a family provision order.
Notional estate orders
Where an asset has been disposed of shortly before a person’s death or where a deceased held property as joint tenants with someone else, these assets will not form part of the deceased’s estate. In some cases, however, a claimant may seek a notional estate order which if successful, may operate to claw the assets back into the deceased’s estate.
5. Competing Claims and Beneficiaries
Identifying other potential claimants
The Court may have regard to the nature and extent of any obligations or responsibilities owed by the deceased person to the claimant, to any other person or relative in respect of whom an application has been made for a family provision order, and to any beneficiaries of the deceased person’s estate.
A greater number of potential claimants may reduce the share of the estate awarded.
Balancing interests and priorities
When considering a family provision claim, the Court may consider the 16 factors set out in section 60(2). The Court will balance the interests and priorities of the claimant and beneficiaries.
6. Gathering Evidence to Support Your Claim
Financial documents and records
The success of a family provision claim will often depend on the extent and quality of the evidence. Strong claims at law can fail if they are not supported by sufficient evidence. If you are unsure about how to gather evidence for a claim, it is important to speak to a lawyer as soon as possible, as they will be able to explore the avenues through which evidence may be obtained and obtain the evidence that supports your case.
Documents such as wills, prior wills, solicitor file notes, financial records, family law settlements, or medical records are all potentially relevant.
Witness statements and affidavits
As written evidence is usually given via a formal document called an affidavit, a lawyer will usually be engaged to assist with preparing an affidavit to ensure the evidence in the affidavit is relevant and admissible to make family provision claims.
7. Mediation and Settlement Outside of Court
Benefits of mediation
Not all family provision claims progress to a court hearing. Most claims can be resolved through negotiations and mediation, obviating the need for a final court determination.
Mediation can often achieve a faster and cheaper result in determining what an eligible person may be entitled to from the estate.
8. Legal Representation and Costs
The cost of a family provision claim depends on several factors, including each party’s willingness to negotiate, the timing of the resolution, the complexity of the legal issues and the nature and extent of court proceedings.
Will Contest Lawyers – Empower Wills and Estate Lawyers
If you need guidance on your eligibility to make a family provision claim, on your behalf or someone else’s, or have questions about the process of making a family provision claim, contact Empower Wills and Estate Lawyers today.
Claims may be made before or after a grant of probate or letters of administration, and even after part of the estate has been distributed, but time if often of the essence and we recommend you seek legal advice as soon as possible.