If you have been left out of a Will or think that you have been treated unfairly, then you may be eligible to make a family provision claim against the deceased person’s estate.

As a general rule, a person making a Will is entitled to dispose of their assets as they see fit. However, the court is still able to order provision from their estate in favour of an eligible person if the court finds that the Will-maker should have made provision for them.

The purpose of family provision legislation is to prevent a Will-maker from using their testamentary freedom in a way that fails to provide for their dependants.

However, just because you think that you have been treated unfairly does not automatically mean that you will be eligible to make a claim or that you would be successful.

To make a claim to begin with you must be an eligible person. In New South Wales an eligible person, broadly speaking, is a person who was, at any particular time, wholly or partly dependant on the deceased person. There are very precise rules as to who qualifies as an eligible person so you should make sure that you seek legal advice.

When considering an application for family provision from an eligible person, the court places itself in the shoes of the deceased and has to consider what the deceased ought to have done. The two main enquiries that the court considers is:

  1. Was the applicant left without adequate provision for their proper maintenance, education and advancement in life?
  2. If the deceased failed to make proper provision for the applicant, then what provision should be made?

Some of the many factors that the court takes into account includes the assets available in the estate, the financial resources of the applicant, and the extent of any obligations or responsibilities owed to the applicant by the deceased.

Accordingly, it is not enough that you may think the will is ‘unfair’ or that you should have received more. While moral duty and moral obligation factors are relevant, there must be circumstances that warrant the court to make provision, or further provision, for an applicant.

Get in touch with our Wills & Estates lawyers

At Turner Freeman, our experienced Wills & Estates lawyers regularly assist applicants making a family provision claim or executors defending claims against an estate. They will also often act on a ‘No Win – No Fee’ basis.

Call Turner Freeman today to arrange a consultation with one of our experienced Wills & Estates lawyers.