Australia: Family provision claims in NSW – An overview

Last Updated: 21 October 2017
Article by James Hall (formerly with Carroll & O'Dea)

When someone close to you passes away leaving a will, you would assume that it is an indisputable document that sets out how their estate must be distributed, right?

Wrong!

What many people do not know is if that if you feel that you have been unfairly left out of a will or unfairly provided for in a will there is a way to challenge that will through the Courts.

These types of claims are known as 'family provision' claims and are becoming increasing popular in the current age of longer life expectancy, divorce, multiple partners, step children and blended families.

What is a family provision claim?

In simple terms, a family provision claim is where one party makes an application to the Court for a portion or larger portion of a deceased person's estate.

In order to make a family provision claim you must:

  1. Be an 'eligible person' in the eyes of the Court;
  2. Have been left out of a will or feel you did not receive your due entitlements in a will; and
  3. Make your claim within 12 months of the date of death of deceased.

Who is eligible to make a family provision claim?

As noted above, a family provision claim can only be made by an eligible person as defined in section 57 of the Succession Act 2006 (NSW).

The following are 'eligible persons':

  1. A wife or husband of the deceased;
  2. A de facto partner of the deceased;
  3. A former wife or husband of the deceased;
  4. A child of the deceased (including adopted and step-children)1;
  5. A dependant (wholly or partly) of the deceased;
  6. A grandchild of the deceased;
  7. A person who was a member of the deceased's household at any time; and
  8. A person with whom the deceased was living in a close personal relationship2 as at the date of death.

It is important to note that where an eligible person is under any legal incapacity, such as a child or someone with a mental illness, an application can be made by a tutor.

What will the court consider?

Section 60 of the Succession Act 2006 (NSW) sets out what the Court will consider before making orders in a Family Provision claim and include:

  • Any family or other relationship between the applicant and the deceased;
  • The nature and extent of any obligations or responsibilities owed by the deceased to the applicant;
  • The nature and extent of the deceased's estate;
  • The financial resources and needs of the applicant;
  • The financial circumstances of any person the applicant is living with;
  • Any physical, intellectual or mental disability of the applicant;
  • The applicant's age;
  • Any contribution by the applicant to the deceased's estate or welfare for which they were not appropriately compensated;
  • Any provision made for the applicant by the deceased;
  • Any evidence of testamentary intentions (i.e. in a will or statement) of the deceased;
  • Whether the applicant was being wholly or partly maintained by the deceased;
  • Liability of any other person to support the applicant;
  • The character and conduct of the applicant;
  • The conduct of any other person;
  • Any relevant Aboriginal or Torres Strait Islander customary law; and
  • Any other matter the Court considers relevant.

How a claim is made

In New South Wales, Family Provision claims are made by filing a summons and a supporting affidavit in the Supreme Court of New South Wales.

It is important to note that it is not required that Probate or Letters of Administration be granted before bringing a family provision claim.

The summons sets out what orders you are seeking be made by the Court. For those left out of a will such an order may be that provision be made out of the estate for the maintenance, education and advancement in life.

The supporting affidavit will cover eligibility to make a claim and will contain sufficient information about the above listed matters to be considered by the Court. There is a preform affidavit on the Supreme Court of New South Wales website which serves as a guide as to what should be included in the supporting affidavit.3 It is helpful to the Court and the claim if annexures are included to substantiate the information contained in the affidavit.

It is also required that the applicant file a Notice of Eligible Persons which identifies those persons who are potential Eligible Persons to make a claim on the Estate and a further affidavit setting out an estimate of the costs and disbursements up to and including mediation.

What to expect

There are no hard and fast rules on how a Family Provision claim will play out or how long they will take.

Much of how these claims will end up is determined by the attitude of the parties, their willingness to negotiate, the makeup of the estate and the availability of evidence.

Applicants have a high rate of success in Family Provision claims and often settle by way of agreement between the parties or at mediation. As legal costs are often paid out of the estate, most are keen to settle to avoid increasing the costs and reducing the value of the estate.

What to do next

If you are an eligible person or if you are unsure if you are an eligible person and want to make a family provision claim, it is important that you obtain legal advice before making such a claim.

Footnotes

1 See s 57(2) of the Succession Act 2006 (NSW).

2 Meaning that the person and the deceased were living together as at the date of death and one or each of whom provides the other with domestic support and personal care.

3 http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_formsfees/SCO2_forms/SCO2_forms_subject/family_provision_forms.aspx

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
James Hall (formerly with Carroll & O'Dea)
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