When someone passes away, their Will does not always provide for everyone who expected to be included. In New South Wales, certain people can challenge a Will by making a Family Provision Claim under the Succession Act 2006.
Many different types of people are eligible for a Family Provision Claim and it’s not always who you think. Only “eligible persons” can make a Family Provision Claim. The Succession Act 2006 (NSW) defines eligible persons as:
- The spouse or de facto partner of the deceased
- A child of the deceased (including adult children)
- A former spouse
- A person who was wholly or partly dependent on the deceased at any time and was a grandchild of the deceased or a member of the same household as the deceased at any time
- A person in a close personal relationship with the deceased at the time of death
Some of these categories also require the applicant to prove there are factors warranting the making of the application. An experienced estate litigation solicitor can help assess your eligibility based on your individual circumstances.
Being an eligible person does not automatically mean a claim will succeed. The Court’s task is not to rewrite the Will but to determine whether the deceased failed to make adequate provision for the applicant’s proper maintenance, education, and advancement in life.
What does the court consider when assessing a claim?
When deciding a family provision claim, the court considers a range of factors, including:
- The claimant’s financial position, needs and resources
- The nature and duration of the relationship between the claimant and the deceased
- Any financial or non-financial contributions made by the claimant to the deceased or the estate
- The size and nature of the estate
- The needs of other beneficiaries or eligible persons
- Any obligations or responsibilities the deceased had towards the claimant
- Any other matter the Court considers relevant
Because these matters are evidence-based, the quality and relevance of supporting material is critical.
What evidence is needed for an inheritance claim?
The evidence required will vary depending on the circumstances of the claim. Common categories of evidence include the following.
Financial documents are used to demonstrate a claimant’s financial position and level of need. These may include:
Because these matters are evidence-based, the quality and relevance of supporting material is critical.
What evidence is needed for an inheritance claim?
The evidence required will vary depending on the circumstances of the claim. Common categories of evidence include the following.
Financial documents are used to demonstrate a claimant’s financial position and level of need. These may include:
- Payslips or income statements
- Bank statements
- Details of debts, expenses and liabilities
- Information about assets, superannuation and savings
This evidence assists the court in assessing whether further provision is necessary.
Where dependency is relied upon, evidence may include:
- Records of regular financial support
- Evidence of shared living arrangements
- Proof that the deceased paid rent, bills or other expenses
- Statements from third parties confirming reliance on the deceased
Dependency must be clearly established.
Written communications can be relevant in demonstrating the nature of the relationship or expectations of support. This may include:
- Emails, letters or text messages
- Cards or personal correspondence
- Messages discussing financial assistance or future intentions
Such material may help provide context to the relationship between the claimant and the deceased.
If the claimant provided care or assistance to the deceased, relevant evidence may include:
- Records of caregiving responsibilities
- Medical or care-related documentation
- Statements from health professionals, family members or carers
- Evidence of unpaid work or contributions to property or assets
These factors may be considered when determining whether further provision should be made.
In some cases, medical evidence may be relevant to establish:
- The claimant’s health and future needs
- The extent of any dependency
- The deceased’s condition prior to death
This information can assist the court in understanding the broader circumstances of the claim.
Family Provision Claims must be commenced within 12 months of the date of death.
Although the court has discretion to allow an extension of time in limited circumstances, extensions are not guaranteed. Delay can significantly affect the prospects of a claim. Seeking legal advice early allows sufficient time to assess eligibility, gather evidence and consider resolution options.
Many estate disputes are resolved through negotiation or mediation without the need for a final court hearing. Early advice and well-prepared evidence can often assist parties to reach a practical and respectful resolution.
Court proceedings may be necessary in some cases, but they are usually a last resort.
Inheritance disputes can be legally complex and emotionally challenging. Understanding your rights, eligibility and evidence requirements at an early stage can help protect your position and reduce uncertainty.
Tonkin Drysdale Partners Estate Litigation lawyers provide clear, practical advice and guide clients through Estate Litigation with care, professionalism and sensitivity.
If you believe you may be eligible to make an inheritance claim, seeking legal advice early is an important first step.
Contact Tonkin Drysdale Partners Estate Litigation experts today on 02 4341 2355.
