This year marks the 100th anniversary of the
commencement of family provision legislation in New South Wales.
Despite this, we are continuously surprised by the number of people
who come to see us about their estate planning needs and who are
not aware that their will may be challenged in court. With people
living longer and accumulating more wealth, claims on deceased
estates are becoming increasingly common.
In this article, we discuss the nature of family provision
claims and the measures you can take to help protect your estate
What is a family provision claim?
A family provision claim is a claim for provision (or additional
provision) from an estate of a deceased person where 1) that person
left the applicant with inadequate provision in their will or 2)
where the person died without a will (on intestacy). Claims of this
nature are governed by Part 3.2 of the Succession Act 2006
Can anyone make a claim on my estate?
No, only certain categories of people (known in the Act as
'eligible persons') are able to make a family provision
claim. Eligible people are as follows:
the spouse of the deceased at the date of death;
a person living in a de facto relationship with the deceased at
the date of death;
children of the deceased (including adopted and ex-nuptial
former spouses of the deceased;
a person who was at any particular time, wholly or partly
dependent upon the deceased and who was
either a grandchild of the deceased; or
at that particular time or any other time, a member of a
household of which the deceased was a member; and
a person who was living in a close personal relationship with
the deceased at the time of death.
When will the Court make a family provision order?
The Court is permitted, under Section 59 of the Act, to make an
order for provision for an applicant where, in the Court's
opinion, adequate provision for the "proper maintenance,
education or advancement in life" of the applicant has
not been made by the will of the deceased or by the operation of
the laws of intestacy.
Some of the matters that the Court may take into account in
determining whether a family provision order should be made
any family or other relationship between the applicant and the
the nature and extent of the deceased person's estate;
the financial resources (including earning capacity) and
financial needs, both present and future, of the applicant, of any
other person in respect of whom an application has been made for a
family provision order or of any beneficiary of the deceased
any evidence of the testamentary intentions of the deceased
person, including evidence of statements made by the deceased
any provision made for the applicant by the deceased person,
either during the deceased person's lifetime or made from the
deceased person's estate; and
the character and conduct of the applicant before and after the
date of the death of the deceased person.
Ultimately, an order for provision is in the Court's
absolute discretion, taking into account all of the circumstances
of the individual case.
Can I prevent someone making a claim on my estate?
Yes, there is provision in the Act for a person
(Testator) during his or her lifetime, to make an
application to the Court for a Section 95 release. This is a court
order that approves the release of an eligible person's right
to make a future application for provision from the Testator's
As with most legal proceedings, an application for a Section 95
release can be a costly exercise to undertake. We advise that you
speak to a lawyer to discuss whether this is an appropriate course
of action for you.
Is there anything else I can do to help protect my estate from
A properly drafted will can go a long way to bolstering your
estate from a family provision claim. We recommend consulting an
experienced estate planning lawyer to assist you in this
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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