A family provision claim refers to the contesting of the Will of a deceased person, on the grounds that they failed to make proper and adequate provision for someone whom they had a moral obligation to provide for. This means that you may be able to challenge the Will if you have been left out, or given a smaller provision that what you thought. There are limitations on these claims, including on who is eligible to apply and the time limit which they have to make a claim.
Am I eligible?
The eligibility for making a claim depends on the law of the State or Territory where the claim is being made. This is usually in the State or Territory where the deceased lived. Each jurisdiction has its own definition of an ‘eligible person’. In New South Wales, this is found in sections 57 and 59 of the Succession Act 2006 (NSW) and in the Australian Capital Territory it can be found in sections 7 and 8 of the Family Provision Act 1969 (ACT). Generally, partners and children of the deceased are considered to be eligible to make a claim. The definition of an eligible person sometimes also includes ex-partners, grandchildren, or stepchildren of the deceased.
When can you apply?
Like many other legal claims, there are time limitations on making a family provision claim. In New South Wales, a family provision claim must be filed within 12 months from the death of the deceased. Whereas, in the Australian Capital Territory a family provision claim must be filed within 6 months from Probate being granted. There are, however, some circumstances where the court may grant an extension of time to allow a person to make an application this time limit. In making this decision the court may consider a variety of factors, including the circumstances of the applicant, the length of delay, the effect of granting or not granting the extension, whether distribution of the estate has occurred and whether any parties have acted unfairly or dishonestly.
Case Study: Dighton V Norwood [2024] NSWSC 318
In the recent case of Dighton V Norwood [2024] NSWSC 318, the NSW Supreme Court considered a widow’s claim for provision from the deceased’s estate. Pamela and the deceased were married in 2007, at the time of the deceased’s death in 2022, they had been in a relationship for 31 years. Pamela and the deceased did not have any children together, but each had children from previous marriages. The claim made by Pamela centred around the adequacy of provision made for her. The deceased’s Will left only a part share in a property to her, while the majority of his estate was left to his two children.
In reaching its decision, the court considered the testamentary intentions of the deceased, the value and assets of the estate and Pamela’s circumstances. The Court also considered the claim of the deceased’s children over his estate, finding that their claims were not as strong as Pamela’s. Ultimately, the Court found that the deceased did not make adequate provision for Pamela’s proper maintenance, education, and advancement in life. As such, the Court proposed orders for the lump sum payment of $150,000.00 to Pamela from the Estate. The Court has put it to the parties to agree on proposed orders to give effect to this judgement, as the estate will need to sell one of the properties owned by the deceased to make such payment, and their proposed orders will be considered by the Court in a further hearing.
What this means for you
If you think you might be eligible to make a family provision claim, you should seek professional legal advice as soon as possible. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.
If you have any questions or concerns please contact our Private Wealth Director Ashleigh Blewitt on 02 6188 3600