I’m not in the Will?
Unfortunately, it’s become more common for people to either:
- be left out of someone’s Will, or
- to receive a significantly smaller gift than appropriate.
This often happens when a parent leaves a child out of the Will or a defacto decides that their assets should not pass to their partner.
A family provision claim is an application to the NSW Supreme Court seeking a share or, a larger share, from the estate of a deceased person. These applications must be filed within 12 months of the date of death.
To make a claim Family Provision claim on a person’s Estate, section 59(1)Succession Act 2006 requires the following to be established:
- You are eligible to make such a claim, and
- At the time the Court considers your application, adequate provision has not been made in the deceased’s Will for your proper maintenance, education or advancement in life.
Who is an Eligible Person
An eligible person is someone who was:
- the deceased’s spouse
- living in a defacto relationship with the deceased
- the deceased’s Child
- the deceased’s grandchild, or living in their household, and dependent on the deceased whilst they were alive
- in a close personal relationship with the deceased
What is a Close Personal Relationship
The Act defines a close personal relationship as “two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.”
What does the Court consider
The Court must consider the matters set out at section 60(2) which includes:
- The relationship between the Deceased and You, if any, including the nature and duration;
- The obligations or responsibilities the Deceased had, if any, to You or any beneficiaries of the estate;
- The nature and extent of the Deceased’s estate including property which is notional estate and any estate liabilities;
- Your financial resources (including earning capacity) and needs (both present and future) and those of any other applicant or beneficiary;
- The financial circumstances of any other person cohabiting with You;
- Any disability, whether physical, intellectual or mental, of You, any other applicant or beneficiary at the time of the hearing;
- Your age at the time the application is being heard;
- Your contribution (if any) to the Deceased’s welfare or to the acquisition, conservation and improvement of the Deceased’s estate, for which adequate consideration was not received by You;
- Any provision made by the Deceased to You during his lifetime or from the Deceased’s estate;
- Evidence of the Deceased’s testamentary intentions, including evidence of any statements made by the Deceased;
- Whether the Deceased maintained You, wholly or partly, before his death and the extent to and basis on which the Deceased did so (if the court considers it relevant);
- Whether anyone else is liable to support You;
- Your character and conduct before and after the Deceased’s death;
- The conduct of any other person before and after the Deceased’s death;
- Any other matter that the Court considers relevant. This may include matters in existence at the time the Deceased died or at the time of the final hearing.
Get Advice First
If you make a family provision claim, the Judge will decide who pays the legal costs. If a person is succesful, the deceased’s estate may pay part of your legal costs. If unsuccessful, the Judge can order you to pay the estate’s costs of defending the proceedings.
Get advice from Lighthouse Law Group first. We will review your case and let you know whether you have a strong case.
Call us now on (02) 9744 9236.