Family Provision Claims

If you believe you have not received adequate provision or have been excluded from a loved ones will you may be eligible to apply for a greater provision from the estate.

In New South Wales these types of claims are governed by Parts 3.2 and 3.3 of The Succession Act 2006 and are often referred to as “Family Provision Claims’.

In order to successfully apply for a greater provision from an estate you must be deemed an eligible person and be able to convince the Supreme Court there is sufficient need to warrant varying the terms of the Will.

Eligible Person

In summary Section 57 of The Succession Act 2006 defines eligible persons as:

  • a spouse including a former spouse of the deceased;
  • a person who was living in a close personal relationship with a deceased at the time of the deceased’s death;
  • a child (including adopted children); or
  • a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member.

If you believe you satisfy one or more of the above eligibility criteria the next step is to establish a genuine need for greater provision. This is often the more complex component of any claim for greater provision.

Sufficient Need

Claims of this nature are dealt with by the Supreme Court, which will need to satisfy itself that there is a sufficient need to justify altering the terms of the will and that it is appropriate to do so in the circumstances. This process requires the Supreme Court to consider a range of factors including:

  • the relationship between the applicant and the deceased person;
  • any obligations or responsibilities owed by the deceased person to the applicant;
  • the value and location of the deceased person’s estate;
  • the financial circumstances of the applicant, including their current and future financial needs;
  • whether the applicant is financially supported by another person;
  • whether the applicant has any physical, intellectual or mental disabilities;
  • the applicant’s age;
  • any contribution made by the applicant to increase the value of the estate;
  • any other matter the court may consider as relevant.

The partners at BHM Lawyers have extensive experience in the area of Family Provision Claims and will provide you with professional, reliable and practical advice in relation to whether you are an eligible person and if so, your prospects of success.

Please note that in NSW, Family Provision Claims are required to be filed within 12 months from the date of death.

 

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