Family Provision Claims

SUCCESSION ACT 2006 (NSW)

This Act allows certain people to contest a deceased estate where that person (the claimant) considers the deceased has not made adequate provision for the claimant either during the deceased’s life or upon their death, by the Will or the law on intestacy for the proper maintenance education or advancement in life.

WHO CAN CONTEST YOUR ESTATE?

A claim can be brought by:

  • your husband/wife, de facto or partner;
  • your children (includes ex‑nuptial and adopted);
  • your former spouse;
  • a grandchild or a person who has been a member of your household and has been partially or wholly dependent on you;
  • A person living with you in a close personal relationship at the time of your death.

Unless the claim is brought by a spouse, de facto or children, the claimant must show evidence which will convince the court that the claimant was such a person who should have been included in the Will.

MATTERS THE COURT MUST CONSIDER

The law requires the court to consider a number of matters in hearing these claims:

  • The relationship between the applicant and the deceased;
  • The extent of any obligations or responsibilities owed by the deceased to the applicant;
  • The nature and extent of the deceased’s property;
  • The financial resources and financial needs of the applicant;
  • The financial circumstances of any person cohabiting with the applicant;
  • The physical, intellectual or mental disability of the applicant;
  • The appliant’s age;
  • What contribution the applicant made to the deceased;
  • Any previous provision made by the deceased for the applicant;
  • Evidence of the testamenary intention of the deceased;
  • The extent of any dependency by the applicant on the deceased;
  • Other financial support for the applicant;
  • The character and conduct of the applicant.

TIME FOR BRINGING A CLAIM

A person has 12 months from the date of death to bring a claim.

COMPULSORY MEDIATION

All matters involving these disputes will be referred to the court mediation system to attempt to resolve the matters before a court hearing.

ORDERS

Where a claim is successful, the court can order a:

  • lump sum payment;
  • periodic payment from the estate;
  • specific estate asset;
  • life interest in a property or income from an investment;
  • Or any other orders.