Left out of a Will? You may be entitled to make a Family Provision claim?
If you have been left out of a Will, or feel that you have not been adequately provided for in a will, you may be able to make a Family Provision claim on a deceased estate.
What is a Family Provision claim
A Family Provision claim is an application to the Supreme Court of New South Wales for a share or larger share from the estate of the deceased.
When a Family Provision claim is made, the Court is to consider whether there is adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
Section 58(2) of the Succession Act NSW 2006 (the Act) provides that a claim must be filed within 12 months after the date of the death of the deceased person.
We urge you to seek advice from our office as soon as possible due to the strict time limitations.
Are you an Eligible person?
Section 57(1)(c) of the Act provides that you can only make a family provision claim if you are an eligible person. An “eligible person” includes:
- The wife or husband of the deceased;
- A person whom the deceased was living in a de facto relationship at the time of the person’s death;
- A child of the deceased;
- A former spouse of the deceased;
- A person, at any particular time, was partly or wholly dependent on the deceased;
- A grandchild of the deceased who at that particular time or at any other time, a member of the household of the deceased;
- A person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.
What is part of the estate?
Under Part 3.3 of the Act, if, as a result of certain property transactions, property is not included in the estate of a deceased person, or where property has been distributed from the estate of the deceased person, the Court will be entitled, on a discretionary basis, to make an order designating property that is not included in the estate, or has been distributed from the estate as “notional estate”
However, the Court must not make an order without considering the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits in making or refusing to make the order.
What the Court will consider
Under Section 60(2), the court will consider the following matters, including (but not limited to):
- The nature of the relationship between the applicant and the deceased;
- The obligations or responsibilities found to be owed by the deceased to the applicant;
- The obligations or responsibilities fount to be owed by the deceased to the beneficiaries;
- The nature and value of the estate and notional estate of the deceased;
- The financial resources and needs of both the applicant and the beneficiaries;
- IF the applicant is cohabiting with another person and the financial resources of the other person;
- If the applicant has any physical, intellectual or mental disability;
- The age of the applicant;
- Any contributions, financial or otherwise by the applicant to the estate or to the welfare of the deceased;
- Any provision made for the applicant by the deceased person;
- Evidence of the testamentary intentions of the deceased person;
- Whether any other person is liable to support the applicant;
- The character and conduct of the applicant before and after the death of the deceased person;
- Any other matters the Court considers relevant.
A good claim will give examples of your financial resources and needs, your state of health and the nature of your relationship to the deceased.
How much does it cost to make a claim?
A Family Provision claim is filed at the Supreme Court of New South Wales. There is a filing fee which is currently $1,143.00. It is possible to have this fee waived if you are on a pension or can prove financial difficulty.
Orders about who is responsible for costs are made after the outcome of the claim. Who pays the costs is dependent on the individual circumstances and the Court has wide discretion in deciding who pays.
How is a claim resolved?
It is possible that your claim may be heard before a judge in Court. However, because Court proceedings are time consuming, costly and stressful, the majority of claims are settled between the parties outside of court.
If you are considering making a Family Provision claim, you should seek advice from our office about the prospects of your case and possible costs before commencing proceedings.
Get in touch for a free consultation … Book an appointment.