Family provision claims in NSW
By James Whiley and Isabella Urso
Are you considering making a family provision claim, or are you concerned about a family provision claim being made against an estate in New South Wales?
The Court has broad discretion when making family provision orders in New South Wales. It is important to get advice as soon as possible, particularly in circumstances involving blended families or where there are competing needs among surviving family members.
NSW position
In this instalment of our estate disputes series, we discuss family provision claims in New South Wales, including who is eligible to bring a claim, the factors that are considered when assessing family provision claims and the relevant limitation periods.
Isabella Urso
[Transcript]
A family provision claim includes an application to the Court for a share or greater share from the estate of a deceased person. Without a family provision claim, the terms of a Will or relevant intestacy provisions, would apply.
To make a family provision claim you need to be an eligible person and in New South Wales the Succession Act lists categories of eligible persons based on their relationship with the deceased. This includes spouses, defactos, children or even former spouses. A grandchild or a person living with the deceased at the time of death may also qualify.
Ultimately, the Court will make a family provision order when it thinks that adequate provision ought to have been made for the eligible person for their proper maintenance, education or advancement of life, having regard to all the circumstances of the case.
The Succession Act in New South Wales sets out some of the factors that the Court may consider, but does not have to, when assessing whether someone is an eligible person, whether a family provision order should be made and the nature of that order. Some of these factors include, the nature of the relationship between the deceased and the person making a family provision claim, the nature and extent of any obligations owed by the deceased to the applicant, the value of the estate, the age and financial circumstances of the applicant and whether any monetary gifts or provision was made by the deceased, to the applicant, during the deceased's life.
On a practical note, it is important to be aware of the Court's broad discretion when assessing eligible persons or making family provision orders, particularly in relation to blended families and where there are competing needs amongst surviving family members. The clock starts ticking in New South Wales from the date of death and an extension of time is only available in limited circumstances. Given that, it is important for people considering making a family provision claim or concerned about a family provision claim, to get advice as soon as possible to avoid complications.
Subscribe to our YouTube channel for more updates
Who can make a claim?
A family provision claim involves an application to the Court for a share or a larger share from the estate of a deceased person.
To make a family provision claim in New South Wales you need to be an eligible person.
An eligible person could include:
- a spouse or de facto partner;
- a child;
- a former spouse;
- a person who the deceased was living with in a close personal relationship; and
- a grandchild or person living with the deceased who was dependent on the deceased.
Key considerations
The key consideration in family provision claims is whether adequate provision ought to have been made for the proper maintenance, education or advancement of life of the eligible person.
The following factors, among others, may be considered in assessing whether an individual is an eligible person, whether to make a family provision order, and the nature of any family provision order:
- the nature and duration of the relationship;
- the nature and extent of any obligations owed by the deceased to the individual;
- the value of the estate;
- the financial circumstances of the individual and any other person they are living with;
- any contribution by the individual to the acquisition, conservation and improvement of the deceased’s estate;
- the age, character and conduct of the individual;
- any evidence of the testamentary intentions of the deceased; and
- any monetary gifts or other provision made by the deceased during the deceased’s life.
Time limits to bring a claim
If the deceased died after 1 March 2009, a family provision claim must be made within 12 months from the date of death.
An extension of time is only permitted in very limited circumstances.
In our next article, we will be discussing the concept of notional estates which is relevant to family provision claims in New South Wales.
Contact
Isabella Urso
Lawyer
Private Clients You might be also interested in...
Private Clients | 22 Nov 2022
Will disputes: what assets are exposed?
In the second instalment of our estate disputes series, Partner William Moore looks at how getting the structuring right before death can make a critical difference to the outcome of a claim.
Private Clients | 15 Nov 2022
Will disputes: it’s not fair and I want my share
In our new estate disputes series, we will discuss who can make a claim, timeframes, and some practical considerations that all impact on the success or failure of a claim.