Overview of Family Provision Claims in NSW

In New South Wales, the estate of a deceased person can be left to anyone they choose. This is referred to as testamentary freedom. In some individual circumstances, the law can override the will made by the deceased person by altering the distribution of the deceased estate. This is known as contesting a will, or a family provision order.

A family provision claim is an application that can be made either for a valid will, or for a person who has died without a valid will – otherwise known as dying intestate – and is therefore subject to the laws of intestacy.

There are many factors a Court may consider when assessing a family provision claim, and specialist estate lawyers will be able to assist you in making a family provision claim.

Understanding Family Provision Claims by Eligible Persons under the Succession Act 2006 (NSW)

There are many factors that the Court assesses when deciding who is entitled to make a claim in New South Wales.

When to Make a Family Provision Claim on a Will

Timing is the first one.

A family provision claim must be filed within 12 months from the date of death of the deceased person. This promotes claims being made as soon as possible, to not delay the distribution of the estate. This is because it is more difficult (and sometimes impossible) to contest an estate that has already been distributed. If an application for family provision needs to be made outside of this timeframe, you should consult a lawyer immediately. A family provision claim can be commenced before or after probate has been granted.

Who is Eligible to Make a Family Provision Application and What Does it Mean to be an ‘Eligible Person’?

Only an ‘eligible person‘ as defined in the Succession Act 2006 (NSW) can make a claim. Someone making an application for family provision must first satisfy a Court they are an eligible person to make a claim. Eligibility arises primarily from the nature of the relationship between the deceased and claimant.

Close relationships such as a child, a spouse, or a de facto relationship are eligible persons. There are other categories of people who may be entitled to claim provision, such as former spouses, grandchildren, or a person with whom the deceased was living with at the time of their death, however, these classes of claimants need to satisfy additional criteria and it is important to seek legal advice on the individual’s potential eligibility.

What else does a Person Making a Claim Need to Prove

The third considers the question of adequate provision. The claimant must satisfy the Supreme Court that adequate provision for their proper maintenance, education, or advancement in life had not been made by the will of the deceased person.

Persons wishing to file a family provision claim must be able to prove that they were inadequately provided for in the deceased’s will, and that the will-maker – or testator – had a duty to provide the financial support or resources. 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 determines whether adequate provision was made for the applicant by examining the evidence at hand. After considering the evidence, the Court will determine whether the deceased made adequate provision for the claimant’s maintenance, education or advancement in life. If the Court finds that adequate provision has not been made, family provision is made.

Resolving the Dispute with Another Beneficiary through Mediation or file a Family Provision Claim?

Not all disputes require Court intervention.

In some instances, a lawyer can write to the executor and other parties including other beneficiaries, to put them on notice of their intention to bring a family provision claim, which may lead to the parties negotiating and/or attending mediation and reaching a resolution outside of Court.

Don’t contest the Estate of a Deceased Person Yourself – Contact Estate Lawyers in Sydney

If Court proceedings eventuate, a claim is often made by filing a summons, however, the practice and procedure of the Court is complex, and you should seek advice from experienced estate lawyers in Sydney before considering a claim.

Some of the Factors the Court Considers in a Family Provision Claim in New South Wales

1. The Nature and Duration of the Relationship

The Court can examine the nature and duration of the relationship. Generally, a long, loving, and close personal relationship results in a stronger claim.

Even someone who has fallen out of favour with the deceased, may have a strong claim. However, a long-term estrangement may weaken a claim.

2. The Nature and Extent of the Applicant’s Dependency on the Deceased

The Court can examine the nature and extent of any obligations or responsibilities owed by the deceased person to the claimant, to any other person in respect of whom an application has been made for a family provision order, or to any beneficiaries of the deceased person’s estate. If a person relies on this factor, they will have to provide evidence to establish that they had been wholly or partially dependent on the deceased for their welfare.

A person who is the recipient of maintenance payments or other forms of financial support may rely on this as being relevant to a claim. For example, family law settlements can be relevant to this factor, and others.

3. The Size and Nature of the Deceased Person’s Estate

The size and nature of the deceased person’s estate is significant in a will dispute, and typically, the larger the estate, the greater scope there is to seek a family provision order as smaller estates might not have sufficient funds to divide between potential beneficiaries and claimants.

4. The Financial Resources and Financial Needs of the Applicant (and any cohabiting partner) and Other Beneficiaries

An applicant with substantial financial resources of their own may face difficulty in satisfying a Court that the deceased’s will did not adequately provided for their proper maintenance, education, and advancement in life. The financial resources or needs of other beneficiaries will also be relevant.

5. Any Physical, Intellectual, or Mental Disability of the Applicant

The Court may have regard to any physical, intellectual, or mental disability of the applicant, any other person in respect of whom the application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated.

6. The Applicant’s Age

A young or vulnerable person may have a stronger claim than someone of advanced years.

7. The Extent of any Contributions made by the Applicant to the Acquisition, Conservation, and Improvement of the Estate

If a claimant had made contributions of a financial, physical, or personal kind to the estate of the deceased person, or to the welfare of the deceased person, these contributions may be relevant to a claim.

8. The Extent of any Provision received by the Applicant from the Deceased During their Lifetime

The Court may have regard to any provision made for the applicant by the deceased person during the will-maker’s lifetime.

Someone who received significantly more money or support from the deceased during the deceased’s lifetime compared to other beneficiaries may have their claim reduced.

9. The Deceased’s Testamentary Intentions in the Will and other documents

The intentions of the deceased person are important. The deceased may have only left a small gift to a child or spouse or disinherited them entirely. Sometimes, a testator will prepare a document setting out their reasons for doing so, often in the form of a statutory declaration, and store that document with their will. The Court may take these documents into consideration when considering the family provision claim.

10. The Character and Conduct of the Applicant

The Court may have regard to the claimant’s character and conduct before and after the date of the death of the will-maker.

Any evidence of physical, verbal, psychological or sexual abuse by a claimant against a deceased person may weigh against the claimant.

11. Any other Matter the Court Considers Relevant

The Court may also take into account any factors that it may deem relevant.

Contact a Succession Lawyer for Legal Advice Today if You Believe you may be Eligible to Bring a Family Provision Claim.

If you believe you are entitled to receive more under a will because what you have received is inadequate, and need a law group of specialist lawyers experienced in making family provision claims? Contact Empower Wills and Estate Lawyers in Sydney today on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.