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Family Provision Claims in NSW
If you feel you have not been adequately provided for following the death of a family member or loved one and would like to seek further provisions from the estate, a family provisions claim may be an option. Speak to our experienced team of Estate Planning specialists for sound and considered legal guidance.
What is a Family Provision Claim?
A family provision claim allows eligible persons to make an application to the Supreme Court of New South Wales to gain a share or increase their share of the estate of a deceased family member or loved one.
A family provision claim is made on the grounds that “adequate provision for proper maintenance, education, and maintenance in life” has not been provided from the deceased’s estate. This may mean you are not receiving what you believe you were entitled to from the estate or you were left out of the Will entirely.
A family provision claim can be made in cases where a Legal Will exists and also in some cases where the deceased has left no Will. The claim must be filed with the court within 12 months of the death of the estate owner. The grant of Probate or Letters of Administration is not necessary before making a claim.
Who Can Make a Family Provision Claim in NSW?
The Supreme Court of New South Wales will only accept applications for family provision from those deemed an ‘eligible person’ as defined in section 57 of the Succession Act 2006 (NSW).
You may be eligible to make a family provisions claim in NSW if you are:
- The wife or husband of the deceased
- A de facto partner of the deceased (including same-sex couples)
- A child of the deceased (including an adopted child)
- A former wife or husband of the deceased
- A person who was (wholly or partly) dependent on the deceased
- A grandchild of the deceased
- A member of the same household as the deceased
- A person living in a close personal relationship with the deceased at the date of death.
How Does a Family Provision Claim Work?
The process of making a family provision claim can be long, costly and emotionally exhausting. Sound and considered legal advice from an experienced solicitor should be sought to ensure your claim is filed correctly and the correct process is followed.
The process of making a family provision application
- Determine your eligibility and chances for a successful application by consulting a solicitor.
- The application along with all relevant documents and evidence is filed with the Supreme Court of New South Wales
- The matter is then listed for compulsory mediation.
- If the matter is not successfully resolved at mediation, then the matter will be listed for a hearing.
- The Court will make an order after considering the case against the criteria outlined in section 60 of the Succession Act 2006 (NSW)
What things will the court consider when deciding my case?
- 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
- Whether the applicant is financially supported by another person
- Whether the applicant has any physical, intellectual or mental disabilities
- The applicant’s age
- Any contribution made by the applicant to increase the value of the estate
- Whether the deceased person has already provided for the applicant during their lifetime or from the estate
- Whether the deceased person provided maintenance, support or assistance to the applicant
- Whether any other person is responsible to support the applicant
- The applicant’s character
- Any applicable customary law if the deceased were Aboriginal or Torres Strait Islander
- Any other claims on the estate
- Any other matter the court may consider relevant.
Specialists in Family Provision Claims and Contested Wills
If you are an eligible person or if you are unsure if you are an eligible person and want to make a family provision claim, our team of Estate Planning specialists are here to help.
Our highly experienced legal team will provide expert guidance, assist with the application, prepare all relevant documentation, and lodge with the NSW Supreme Court on your behalf. Our team will work hard to ensure the best possible outcome for your situation.
With offices in Newcastle, Toukley, Maitland, Edgeworth & Port Macquarie we’re here to help you with affordable and approachable service.
Speak to our team of estate lawyers to create a plan that protects your assets and your family
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