Family Provision Claims are made when an eligible person challenges the validity of a Will because they feel they have been left out of a Will or not adequately provided for in the Will. As the name suggests, Family Provision Claims are typically made by the children, spouses or de-facto partners of the deceased. If you feel you have been inadequately provided for in a deceased’s Will, this article will explore the 5 things you as an applicant need to consider before filing a Family Provision Claim in New South Wales.

What is the purpose of a Family Provision Claim?

A Family Provision Claim is an application made to the Supreme Court under the Succession Act of the relevant State jurisdiction, whereby the applicant claims that he or she:

  • is an ‘eligible person’; and
  • is therefore entitled to receive a provision or a greater provision from the deceased’s estate.

A person making a Family Provision Claim does so on the grounds that “adequate provision for their proper maintenance, education and maintenance in life” has not been made from the deceased’s estate. In other words, they have either been left out of the Will entirely or they did not receive what they thought they were entitled to from the estate. 

In our previous article – 5 things beneficiaries of an estate must consider, we discussed important considerations for a beneficiary of an estate. However, in the event where you have not been named a beneficiary in the Will, or otherwise, have not been adequately provided for in the Will, provided you meet the criteria of an ‘eligible person’ you are entitled to make a Family Provision Claim.

Once an application is made, the Court will consider your eligibility to contest the Will and evaluate whether you, as an eligible person, have in fact been deprived of the deceased’s estate. If they find in your favour, the Court may make a Family Provision Order for you based on what the Court deems is an adequate provision for you from the deceased’s estate.

Before making a Family Provision Claim, there are five things you will need to consider:

1. Who can make a Family Provision Claim?

In order to make an application for a Family Provision Claim, you must be deemed an “eligible person”. Section 57 of the Succession Act defines an eligible person as someone who is:

  • a surviving spouse of the deceased;
  • a person who was living in a de facto relationship with the deceased;
  • a biological or adopted child of the deceased;
  • a former spouse of the deceased;
  • a person who:
    • was a member of the deceased’s household;
    • is a grandchild of the deceased; or
    • was wholly or partly dependent on the deceased person; or
  • a person with whom the deceased was in a close personal relationship (other than a marriage or a de facto relationship), where this person and the deceased were living together, with one or each of them providing domestic support and personal care, at the time of the deceased’s death.

2. The process of making a Family Provision Claim

In NSW, there is no requirement for Probate or Letters of Administration to have been granted before a Family Provision Claim can be made.

The process of making a Family Provision Claim can be lengthy, expensive and consuming, especially if the matter is litigated to the final hearing (goes before the Courts).  It’s important to seek legal advice early on from an experienced Wills and Estate Planning Lawyer to ensure that your claim is filed correctly and the correct process is followed.

If you wish to make a Family Provision Claim, our Ivy Law Group lawyers are here to assist. Submit an online enquiry or call us on 02 9262 4003 for a confidential discussion.

The process for making a Family Provision Claim varies between each State and Territory, however in NSW, an application is made by filing a Summons to the Supreme Court of NSW, together with supporting affidavit(s) and documents in accordance with the strict requirements and guidelines of the Supreme Court.

Given the complex and emotion-charged nature of Family Provision proceedings, it is often advised that all parties involved should participate in early mediation or a settlement conference to attempt to resolve the matter outside the Court.  In any case, most of these proceedings are referred to mediation by the Court. If you would like guidance on this matter, get in touch with our Wills and Estate Lawyers for a no-obligation consultation.

3. What are the family provision matters that the Court will consider?

It is important to note that being an eligible person does not automatically guarantee that you will be entitled to receive a provision from the deceased’s estate. Instead, the Court assesses each individual claim on a case-by-case basis, considering a variety of factors when determining the applicant’s proposed entitlement, if any.

The key factors that the Court will consider when assessing each Family Provision Claim (as set out in section 60 of the Act), include the following:

  • the nature and duration of the relationship between the applicant and the deceased;
  • the intentions of the deceased person, as evident in their Will or any other statement made by the deceased person that may qualify as a statement under section 100 of the Act, including any provision that has been made for the applicant during the deceased’s lifetime or from their estate;
  • the nature and extent of:
    • any obligation or responsibilities owed by the deceased to the applicant; and
    • the deceased’s estate (including any notional estate) and any liabilities of the estate
  • the applicant’s:
    • age, character and conduct (before and after the deceased’s death);
    • financial circumstances, including current and future financial needs; and
    • health, including any physical, intellectual or mental disabilities;
  • any contributions (whether financial or otherwise) made by the applicant towards the acquisition, conservation and improvement of the deceased’s estate or the welfare of the deceased or their family;
  • any customary law where the deceased was Aboriginal or Torres Strait Islander;
  • any other matters the Court deems fit to consider.

4. Time limits applicable to filing a Family Provision Claim

There are time limits applied to filing a Family Provision Claim, which differ across states. In NSW, a Family Provision Claim must be filed within 12 months of the deceased’s date of death. The Court may, in some circumstances, grant an extension of time if the applicant is able to show sufficient cause for the delay.

In considering an extension of time, the Court will consider factors such as the reasoning for the delay, the circumstances of the estate and whether it has already been distributed, and any unfair prejudice caused to the beneficiaries by granting an extension.

If you are unsure as to whether your Family Provision Claim has been filed within the set timeframe, our Sydney Wills and Estates Lawyers will be able to advise you on the best course of action.  

5. Can a Family Provision Claim be filed where the deceased has died without a Will?

Where the deceased has died without a Will, also referred to as ‘intestate’, a surviving relative of the deceased may be able to make a Family Provision Claim against the deceased’s estate provided the Court is satisfied that the person seeking the Family Provision order is an ‘eligible person’. Generally, where the deceased has died without leaving a valid Will, will see the rules of intestacy apply and where Letters of Administration may need to be applied for. An administrator is then appointed by the Court to distribute the deceased’s estate.

In New South Wales, rules set out in the Succession Amendment (Intestacy) Act 2009 give priority to the spouse of the deceased, and any other relatives thereafter. Where the deceased has died intestate, and the State distributes the assets accordingly, the applicant is able to make a Family Provision Claim in a similar manner to that if the deceased had a valid Will.

Need to file a Family Provision Claim? Our Wills & Estate Lawyers are here to assist.

Whether you have made the decision to file a Family Provision Claim, or have been made aware of a Family Provision Claim to an estate of which you are beneficiary to,  our experienced Sydney Wills and Estate Lawyers are here to assist. Give us a call today on 02 9262 4003 or submit an online enquiry to get started.

The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.

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