Family Provision Claims in NSW: What You Need to Know
When a loved one passes away, the distribution of their estate is typically managed according to their will or if they did not make a will, in accordance with the intestacy chapter of the Succession Act 2006. However, there are times when loved ones are left out of the will or believe the provision made is inadequate. In NSW, the law provides certain eligible individuals with the right to contest a will or their entitlement on intestacy through what’s known as a Family Provision Claim.
Family Provision Claims are designed to ensure that certain individuals receive adequate and proper provision from a deceased person’s estate. Here’s what you need to know about these claims, who’s eligible, and how the process works.
A Family Provision Claim is a legal challenge to a will or entitlement on intestacy. It allows eligible people to seek a larger share of the deceased’s estate if they believe they have not been adequately provided for. These claims are governed by the Succession Act 2006 (NSW).
Who Can Make a Family Provision Claim?
Not everyone can challenge a will. Under NSW law, only certain “eligible persons” can make a Family Provision Claim. Eligible persons include:
- Spouse: The person married to the deceased at the time of their death.
- De Facto Partner: A person in a de facto relationship with the deceased at the time of death.
- Children: This includes biological children, adopted children, and sometimes stepchildren or grandchildren if they can demonstrate dependency.
- Former Spouse: An ex-spouse may be eligible in limited circumstances.
- Grandchildren: only if the grandchild was at any time wholly or partly dependent on the deceased.
- Financial Dependents: People who were at any time dependent on the deceased and a member of the same household as the deceased.
- Other Eligible Persons: People who were living in a close personal relationship with the deceased at the time of their death.
What Factors Does the Court Consider?
When deciding a Family Provision Claim, the court takes into account a range of factors, including:
- The financial position of the claimant: If the claimant is in financial hardship or has significant future needs, this will be considered.
- The size of the estate: If the estate is small, there may be less room for additional distributions.
- The relationship between the claimant and the deceased: The nature and closeness of the relationship are relevant.
- Any contributions made by the claimant: Contributions to the deceased’s property, finances, or care may be taken into account.
- The needs of other beneficiaries: The court will consider the impact of granting a claim on other beneficiaries named in the will.
The overriding goal is to ensure that eligible claimants receive adequate and proper provision for their “maintenance, education, or advancement in life.”
How Do You Make a Family Provision Claim?
If you believe you have a valid Family Provision Claim it’s always best to seek legal advice first. Tonkin Drysdale Partners offers free 15-minute case calls to those wanting to explore an Estate Litigation case.
How Long Does the Process Take?
While some Family Provision Claims are resolved within a few months, others can take up to a year or more if they go to court. Mediation can allow family members, beneficiaries and executors to negotiate and resolve their issues quicker either prior to litigation or parties to family provision claims will often be ordered by the court to attend mediation after proceedings have been commenced but before a final hearing.
What Are the Costs Involved?
Costs depend on the complexity of the claim. If the matter goes to court, legal fees can be significant. However, in some cases, the court may order that legal costs be paid out of the estate, especially if the claim is successful.
Can a Family Provision Claim Be Defended?
Yes, executors and beneficiaries can oppose Family Provision Claims. If you’re the executor of an estate, it’s your responsibility to defend the will and ensure the deceased’s intentions are upheld.
If you’re considering making a Family Provision Claim or defending one, Tonkin Drysdale Partners can provide expert legal guidance. Click here to book a free 15-minute phone case call with our experienced team for assistance with navigating the process and protecting your rights.
