FAMILY PROVISION CLAIMS

A will is a legal document in which one declares their wishes for the distribution of their assets after their death. Everyone has what is referred to as “testamentary freedom.” This means you are able to leave your property to whomever you want. This freedom, however, is balanced by laws that allow a Court to make an order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of eligible persons. Sometimes, a person’s final wishes are not the last word.

Someone close to you may have passed away recently and you have just found out that you have been left out of the Will. Contesting a will during such an emotional time can be stressful but our solicitors will make the entire process as smooth as possible.

Who Can Contest A Will?

In New South Wales, you may contest a will if you are an eligible person and you believe you have been left without adequate provision for your proper maintenance, education or advancement in life. The category of persons who may make an application for a family provision order in respect of a deceased person’s estate are listed in section 57 of The Succession Act 2006 (NSW) and are as follows:

a) The wife or husband of the deceased at the time of death;
b) A person with whom the deceased was living in a de facto relationship at the time of death;
c) A child of the deceased;
d) A former wife or husband of the deceased;
e) A grandchild of the deceased who was, at any particular time, wholly or partly dependent on the deceased;
f) A person who was a member of the household of which the deceased was a member and who was, at any particular time, wholly or partly dependent on the deceased;
g) A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Although siblings and parents are not expressly listed as an eligible person, they may fall under category f.

When Can The Application Be Made?

An application for a family provision order can be made at any time within 12 months after the date of the death of the deceased person. Claims that are brought more than 12 months after the date of death cannot proceed unless the Court grants an extension of time on sufficient cause being shown.

When May A Family Provision Order Be Made?

The Court may make a family provision order in relation to the estate of a deceased person if it is satisfied that the person who is seeking the order is an eligible person and that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or, if there is no will, by the operation of the intestacy rules in relation to the estate.

What will the court consider?

So as to determine whether to make a family provision order, the Court may consider the following matters, as set out in section 60(2) of The Succession Act 2006 (NSW):

a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
b) the nature and extent of any obligations or responsibilities owed by the deceased to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
c) the nature and extent of the deceased’s estate including any property that is, or could be, designated as notional estate, and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
e) if the applicant is cohabiting with another person—the financial circumstances of the other person;
f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated;
g) the age of the applicant when the application is being considered;
h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration was not received, by the applicant;
i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate;
j) evidence of the testamentary intentions of the deceased person;
k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and the extent to which and the basis on which the deceased did so;
l) whether any other person is liable to support the applicant;
m) the character and conduct of the applicant before and after the deceased’s death;
n) the conduct of any other person before and after the deceased’s death;
o) any relevant Aboriginal or Torres Strait Islander customary law;
p) any other matter the Court considers relevant.

If you have been completely left out of or inadequately provided for in a Will and you are interested in exploring whether you do have a family provision claim we encourage you to contact us to arrange a free, no obligation consultation during which one of our solicitors will assess your claim and provide you with advice in relation to how to proceed, should you wish to. In most cases, we are able to act on a no win no fee basis.