Need help with a family provision claim in NSW? Butlers Business Lawyers can help.
A family provision claim is an application to the Supreme Court of New South Wales for a share or a larger share from the estate of a deceased person.
An individual can make a family provision claim if they:
- are an ‘eligible person’, and
- have been left out of a will, or
- believes that they did not receive what they thought they were entitled to receive under a will.
An ‘eligible person’ is defined in the Succession Act 2006 (NSW) and includes:
- the wife or husband of the deceased;
- a person who was living in a de facto relationship with the deceased;
- a child of the deceased;
- a former spouse of the deceased;
- a person who was at any particular time, wholly (entirely or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased; or
- a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.
An ‘eligible person’ can dispute an estate and can make family provision claim within 12 months from the date of the death of the deceased. This time limit may be extended at the court’s discretion. It is not necessary that Probate or letters of administration be granted before bringing a family provision claim.
Some of the key factors the Court will consider when making an order include:
- the relationship between the applicant and the deceased person;
- any obligations or responsibilities owed by the deceased person to the applicant;
- the value and location of the deceased person’s estate;
- the financial circumstances of the applicant, including their current and future financial needs;
- any contribution by the applicant to the deceased’s estate or welfare for which they were not appropriately compensated;
- liability of any person to support the applicant;
- whether the applicant is financially supported by another person; and
- any other matter the court may consider as relevant.
Once an individual makes a family provision claim, the court will make a decision in two stages. Firstly, the court will consider whether the applicant is an ‘eligible person’ for the purposes of the legislation. Secondly, the court will decide whether Family Provision Orders should be made, and what these orders should be.