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    I've been left out of the estate: What now?

    29/10/15 9:16 AM

    The death of a family member is always difficult, but it is made all the more difficult when you discover that you have not been fairly represented in the deceased’s Will. The law has evolved the understanding that occasions arise where people who would in normal circumstances be a beneficiary under the Will are not sufficiently provided for. When this occurs, the Court can grant a Family Provision Order to redistribute the benefits conferred by the Will. Family Provision Orders are granted under the Succession Act 2006 (NSW).

    Am I Eligible?

    Only people under certain categories of relationships to the deceased can apply for a Family Provision Order. These include:

    • A wife or husband of the deceased at the time of the deceased’s death;
    • A child of the deceased;
    • A former spouse of the deceased;
    • A person who was a dependent of the deceased at any material time;
    • A grandchild of the deceased;
    • A member of the deceased’s household at any material time; and
    • A person with whom the deceased was living in a close, personal relationship at the time of the deceased’s death.

    I am eligible, do I have a claim?

    There is no definition of “provision” in the Succession Act, let alone a description of “adequacy”.  It has been recognised that provision relates to all the forms of support and assistance given by one person to another and that the type and amount of provision given may change over the course of a lifetime.[1]

    A Family Provision Order is made on the basis that the Court has found that adequate provision for the proper maintenance, education and advancement in life of the claimant was not made in the Will, or in the administration of an intestate estate. This means that the Court will generally take into account the claimant’s needs, including for example:

    • The claimant’s need for accommodation;
    • Medical expenses;
    • The payment of the claimant’s debts; and
    • Future obligations and needs.

    After the Court finds that the Will did not provide adequate provision, then the Court will be guided in granting a Family Provision Order by the “perceived prevailing community standards as to what is right and appropriate”. The Court will conduct a stringent examination of the facts, considering factors such as:[2]

    • the nature of the relationship;
    • the nature and extent of the deceased’s obligation to the claimant;
    • the nature and extent of the estate;
    • the claimant and their partner’s financial resources and needs and that of other persons;
    • the claimant’s age;
    • if the claimant has any disability;
    • the claimant’s contribution to the deceased’s assets or to the deceased’s welfare;
    • provision made for the claimant during the deceased’s life;
    • whether the deceased was maintaining the claimant;
    • evidence of the deceased’s testamentary intention;
    • whether any other person is liable to support the claimant;
    • the claimant’s conduct to the deceased before and after the death; and
    • any other matter the court considers relevant.[3]

    Frank Legal can provide you with advice if you think you have a claim, or if you are unsure what to do next. Contact Robert Webb for further advice at rwebb@franklegal.com.au or 02 9688 6023.

     

    Written by Alec Tonkin, Law Clerk

     

    This article is provided to the reader for general information. It is not legal advice.

     

    [1] Diver v Neal [2009] NSWCA 54, [34].

    [2] Succession Act 2006 (NSW) s60(2).

    [3] Succession Act 2006 (NSW) s60(2).