What is a Family Provision Claim in NSW? A Beginner’s Guide

Key Takeaways

• A Family Provision Claim is a legal avenue for eligible people to seek a fair share of a deceased person’s estate.
• These claims fall under the Succession Act 2006 (NSW) and must be filed within 12 months of the person’s death.
• Only certain people, such as spouses, children, and dependents, can make a claim.
• The court considers factors like financial need, relationship with the deceased, and contributions to the estate.
• A successful claim can alter the distribution of the will or estate.

Introduction

Losing a loved one is hard enough, but what happens if their will leaves you with little to nothing? Or worse, if you’re completely left out? In New South Wales, the law recognises that sometimes a will might not provide adequate financial support for those who need it most. That’s where a Family Provision Claim comes in. This guide breaks down everything you need to know about how these claims work, who can make one, and what the court considers.

What is a Family Provision Claim?

A Family Provision Claim is a legal challenge made against a deceased person’s estate. It allows eligible people to seek a share or a greater share of the estate if they believe they have not been properly provided for in the will, or, if there is no will, under intestacy laws (the legal rules that apply when someone dies without a will).

These claims fall under the Succession Act 2006 (NSW), which sets out who can apply, what the court looks at, and the time limits involved.

Who Can Make a Claim?

Not just anyone can challenge a will. To make a Family Provision Claim, you must be an eligible person, which includes:

• The spouse (including de facto partners) of the deceased.
• The children of the deceased (including adopted and stepchildren in some cases).
• The former spouse of the deceased.
• A person who was dependent on the deceased at some point (such as a grandchild or another household member).
• A person who had a close personal relationship with the deceased and lived with them at the time of death.

If you don’t fit into one of these categories, you may not be able to make a claim.

What Does the Court Consider?

Making a claim doesn’t guarantee success. The court takes several factors into account, including:

1. Financial Needs

The main question is whether you need financial support. The court will look at your income, assets, debts, and overall financial situation to determine if you require further provision from the estate.

2. Relationship with the Deceased

Your relationship with the deceased is a crucial factor. If you were estranged or had minimal contact, this could weaken your claim. However, if you played a significant role in their life, this could strengthen your case.

3. Contributions to the Estate

Did you contribute financially or non-financially to the deceased person’s wealth or well-being? This could include anything from caring for them in old age to helping build a family business.

4. The Size of the Estate

If the estate is small, the court is less likely to make big adjustments. Larger estates provide more flexibility for claims.

5. Other Beneficiaries

The court will also consider the needs of other beneficiaries. If others are also financially struggling, this could impact how much you receive.

6. Any Promises Made

If the deceased made verbal or written promises to provide for you but didn’t follow through in the will, this could work in your favour.

How to Make a Family Provision Claim

Filing a Family Provision Claim involves several steps:

Step 1: Seek Legal Advice

Since these claims involve complex legal and financial issues, it’s crucial to get proper legal advice early. A solicitor can assess your eligibility and the strength of your case.

Step 2: Mediation and Negotiation

Before heading to court, parties often try to settle the matter through mediation. Many claims are resolved at this stage, avoiding expensive court proceedings.

Step 3: File the Claim in Court

You must lodge your claim with the Supreme Court of NSW within 12 months of the deceased’s passing. In rare cases, the court may extend this deadline, but only under special circumstances.

Step 4: Court Hearing

If mediation fails, the case goes to court, where a judge will make a final decision based on the evidence presented.

Possible Outcomes

If your claim is successful, the court can order that you receive:

• A larger share of the estate
• A one-off lump sum payment
• Regular maintenance payments
• A specific asset, like property or investments

If your claim is unsuccessful, the will remains unchanged, and you may be responsible for legal costs.

Common Misconceptions

There are several myths about Family Provision Claims that can cause confusion. Let’s clear some up:

• “Anyone can challenge a will.” – No, only eligible persons can make a claim.
• “The court always changes the will.” – Not necessarily. The court will only intervene if the claim is valid.
• “I can file a claim at any time.” – No, you must act within 12 months.
• “I need to prove the will is unfair.” – Not exactly. The focus is on whether you have been left without adequate provision.

Conclusion

A Family Provision Claim can be a lifeline for those who have been unfairly left out of a will. However, these claims are not automatic, and the court considers many factors before making a decision. If you think you have a case, acting quickly and seeking legal advice is essential.

The Berryman Partners will dispute lawyers have extensive experience challenging wills.  Book a free 15-minute, no obligation call to discuss your situation today.

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This blog was written by Associate,

 Jessica Benson

Jessica practises in the areas of Family Law, Wills & Estate Planning,

Deceased Estates and Will disputes