The death of a loved one can be a difficult and emotional time. These emotions may be particularly challenging if you are left out of a will that you expected to be included in. If you find yourself in this situation, you may have the option to seek a share of the deceased person’s estate by making a ‘family provision claim’.
What is a Family Provision Claim?
In New South Wales, a family provision claim is a legal process that allows certain eligible people to seek a share, or a larger share, of a deceased’s estate if they believe adequate provision has not been made for them. This share is usually in the form of a monetary sum, granted to them out of the deceased’s estate for proper maintenance, education and/or advancement in life.
The Succession Act 2006 (NSW) governs family provision claims.
Time limit
A family provision claim must generally be filed within 12 months from the date of death of the deceased person.
While the Court does have discretion to allow late applications in special circumstances, it is recommended to not miss this 12-month time limit as that can significantly reduce your chances of success or complicate matters, especially if the estate has already been distributed.
Who can make a claim?
You may be eligible to make a family provision claim if you are:
- A spouse or de facto partner
- A child (including adult children)
- A former spouse
- A dependant or someone who was part of the deceased’s household
A person is considered to have had a moral obligation to provide in their will for their spouse and children. This means the court can be more favourable to a family provision claim made by a spouse or child.
Not all categories of eligible people are looked at favourably; certain eligible persons must prove to the court factors warranting which enable them to make a family provision claim. For example, a dependent grandchild must prove their dependence was a direct responsibility on the grandparent, not merely the grandparent assisting their own adult child or providing gifts to the grandchild.
What the court will consider?
In a family provision claim, you will be required to provide the court with evidence and supporting documents (as necessary) regarding your relationship with the deceased and your current financial and personal circumstances. The purpose of this is to prove that adequate provision has not been made for you from the deceased’s estate.
In determining whether adequate provision has been made, the court will consider:
- Your financial needs and resources
- Your relationship with the deceased
- The size of the estate
- Any competing claims from other beneficiaries
Please keep in mind, success in a family provision claim is not automatic. The court will weigh all circumstances carefully in making their determination.
To sum up
Being left out of a will does not necessarily mean you have no rights. If you believe you have not been adequately provided for, a family provision claim is a pathway to seek a fair outcome. The key is to act promptly, understand your eligibility, and obtain proper advice to protect your interests. Contact Baker Love Lawyers on (02) 4944 3322 or via the contact form below.
If you would like more information on this topic, visit our page on contested estates.
ABOUT LINDSEY ROBERTS
Senior Associate
Lindsey is a skilled advocate with experience appearing in the Local, District and Supreme Courts. While Lindsey enjoys advocacy, she appreciates that many clients prefer to resolve their disputes without the stress and expense of going to court. This has made her proficient in negotiation and seeking out strategies which provide settlement opportunities for her clients. Her sound reasoning skills enable her to deliver effective advice and legal solutions tailored to each individual case.
