When someone passes away and leaves a valid will, the commonly held belief is that there is nothing you can do to challenge the terms on which the estate is distributed, however, this is not the case.
In NSW, if certain conditions are met, you can bring a claim for ‘family provision’.
What is a Family Provision Claim and Who can Bring Them?
A family provision claim is an application to the Court to be allocated a share (or a larger share) of a deceased person’s estate.
You can make a family provision claim if:
You are an ‘eligible person’;
You make your claim within 12 months of the date of the deceased's death; and
You have been left out of a will entirely, or feel as though you did not receive an adequate allocation of the deceased’s estate
Who is an eligible person?
The term eligible person is defined in section 57 of the Succession Act 2006 (NSW) and includes:
The spouse or de facto partner of the deceased person at the time of their death;
A child of the deceased person;
A former spouse of the deceased person;
A person:
Who was (at any time) dependent on the deceased person; and
Who is their grandchild, or was a member of the household of which the deceased person was a member;
A person with whom the deceased person was living in a close personal relationship at the time of their death.
What Matters will the Court Take into Account?
Section 60 of Succession Act 2006 (NSW) sets out the matters that the Court will consider when deciding whether an applicant is an eligible person, and whether a family provision order should be made.
They are:
The nature and duration of the relationship between the deceased and the applicant;
The nature and extent of the obligations or responsibilities the deceased owed to the applicant;
The nature and extent of the deceased’s estate and any liabilities or charges to which it is subject at the time of the claim;
The applicant’s financial resources and needs, and if the applicant is cohabiting with another person, that person’s financial circumstances;
Any physical, intellectual, or mental disability of the applicant at the time of the application or that may reasonably be anticipated;
The age of applicant;
Any contribution made by the applicant to the deceased’s estate or welfare for which they were not adequately compensated;
Any provision made by the deceased for the applicant;
Any evidence of the testamentary intentions of the deceased, including evidence of things they said;
Whether the applicant was being maintained by the deceased, and if the Court considers it relevant, the extent to which and basis on which they did so;
Whether any other person is liable to support the applicant;
The applicant’s character and conduct;
Any relevant Aboriginal or Torres Strait Islander customary law; and
Any other matter the Court considers relevant.
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