A family provision claim seeks that the Court make an order which varies the terms of a will, as adequate provision has not been made by the Deceased under their will.
To bring a family provision claim, the following needs to be satisfied:
- Who is eligible to bring a claim?
- When can a claim be made, is there a limitation period?
- When a family provision order can be made?
- What matters does the Court consider when determining a claim?
We will consider each item above in the following paragraphs.
Eligibility
The Court must consider if the person making a claim is deemed an eligible person pursuant to section 57 of the Succession Act 2006 (NSW) (“the Act”).
Bringing a claim
Pursuant to section 58 (2) of the Act, an application for a family provision order can be made within 12 months from the date of death to bring a claim against an estate.
It does not affect the claimant’s ability to bring a claim whether a grant of probate or letters of administration has been granted to the executor of an estate pursuant to section 58 (1) of the Act.
Considerations by the Court
The Court may consider the following prior to making an order for family provision to a claimant(s):
- The nature and duration of the relationship between the Deceased and applicant;
- Obligations or responsibilities owed by the Deceased to the Applicant;
- The nature and extent of the estate;
- The financial needs of the applicant (both present and future);
- The age of the applicant;
- Any contribution to the acquisition, conservation and improvement of the estate;
- If anyone else can support the applicant; and
- Any other matters the Court considers relevant.
Recent Matters
Example One
We recently acted for a widowed husband who lost his wife and was not adequately provided for in the will.
We prepared an application seeking a family provision order from the New South Wales Supreme Court (“the Court”).
We obtained a statement from our client which was converted into evidence to put before the Court which explained their need for provision from the Court.
The matter was progressed quickly to a private mediation where the matter was successfully settled.
Our client was happy to have the matter resolved in a timely manner without needing to go a final hearing which would have involved significant legal fees and the stress of ongoing litigation.
Example Two
We recently worked on a matter where there was one stepchild who had shared a household with the Deceased and three other biological children of the Deceased and partner. The Deceased had been a parental figure for that stepchild.
On the passing of the stepparent, it was determined in the will that provision was only made to the biological children and not the stepchild.
Upon review and consideration of the matter, it was not commercial for the stepchild to bring a claim. The potential provision available from the estate assets when combined with the estate debts thus and available assets for distribution meant that there would not be sufficient estate assets for distribution to make the claim worthwhile. FaWhile it was an unfavourable outcome it’s important to identify this early, prior to incurring significant costs and being locked into court proceedings.
Example Three
We recently acted in a matter where we acted for twin boys whose mum had passed away. The sons had been estranged from their mum for a period which was attributed by the fact they had both moved interstate for work and their mum had remarried. This affected their relationship and ability to be in regular contact.
In any event when their mum passed away, they were surprised that no provision had been made for them both under the will. The only provision had been made for their mum’s new husband.
Upon searches, further investigations and contact with their mum’s lawyer, it was determined that all assets had been owned jointly.
Consequently, on the death of their mum all the joint assets held were transferred to the new husband by way of survivorship. As their mum held no assets in her sole name, there was no estate as such and therefore no need to obtain a grant of probate, and subsequently no assets with which to bring a claim against.
Next Steps
If you know someone who has not been provided for in a will or the provision made under that will is not adequate to meet their needs, please reach out to our Litigation Team for a free first conference.
In our free first conference, we will meet you (either in person or online) to better understand your circumstances and the issue to be resolved. We will then propose a strategy to solve your matter in the most timely and cost effective manner.
This is not legal advice.
