Family provision claims

If you have not been included as a beneficiary in someone’s Will you may be able to make a family provision claim against the deceased person’s estate. The application must be filed with the Supreme Court of New South Wales within 12 months of the date of death.

Who can claim?

In order to be able to make a claim, firstly, you must be an eligible person. An eligible person is defined in the Succession Act 2006 as:

  1. a person who was the spouse of the deceased person at the time of the deceased person’s death,
  2. a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
  3. a child of the deceased person,
  4. a former spouse of the deceased person,
  5. a person:
    1. who was, at any particular time, wholly or partly dependent on the deceased person, and
    2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
  6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Secondly, inadequate provision must have been made for you by the deceased for your education, maintenance or advancement in life. The issue is not whether you have been treated unfairly it is whether inadequate provision has been made for you.

There are a number of factors which the Court will take into consideration in determining whether an Order should be made for provision out of the deceased’s estate which include the relationship with the deceased, whether there was any estrangement and, if so, the reasons for the estrangement, the size of the estate, the interests of the other beneficiaries, any gifts made during the lifetime of the deceased and the reasons why you were left out of the Will, if any specified by the deceased.

In order for you to be successful in a family provision claim, you must be able to prove to the Court you have financial need and the onus is on you to prove that provision should be made for you from the deceased’s estate.

Often claims can be resolved without proceeding to a final hearing, for example, at a mediation.

If you believe adequate provision has not been made for you from someone’s estate please contact us at Turner Freeman to discuss whether you are eligible to make a claim.