Contested Estates: Family Provision and Disputed Will Claims in NSW and the ACT

Family provision and Disputed Will claims enable eligible persons to seek a fair share of a deceased person’s estate if they believe they have not been adequately provided for under the will or persons estate.

The laws governing these claims vary between jurisdictions and this article provides a general overview of family provision and disputed will claims in New South Wales (NSW) and the Australian Capital Territory (ACT).

 

Family Provision and Disputed Will Claims in New South Wales

In NSW, family provision under the Act enables eligible persons to apply to the Supreme Court of NSW for provision from an estate if they believe the will or the intestacy rules have not made adequate provision for them from the Deceased’s estate

1. Under section 57 of the Succession Act 2006 Who is considered an Eligible Person to Make a Claim:

a) Spouses and De Facto Partners: Current or former spouses, and de facto partners, including those in a domestic relationship at the time of the deceased’s death.

b) Children: Biological children, adopted children, and in some cases, stepchildren.

c) Dependents: Individuals who were financially dependent on the deceased, which may include grandchildren or other relatives.

d) Persons in a Close Personal Relationship: Individuals who had a close personal relationship with the deceased and who were reliant on them.

 

2. Grounds for a Claim:

(i) Inadequate Provision: The eligible person must demonstrate that the provisions made in the will or under intestacy rules do not adequately provide for their maintenance, education, or support.

(ii) Financial Need: The eligible person’s financial needs and circumstances are considered alongside the deceased’s estate and obligations.

 

3. Process:

(i) Filing a Claim for Family Provision: Claims must be filed with the Supreme Court of NSW, within 12 months from the date of death or the grant of probate.

(ii) Mediation with the parties. The court encourages the parties to mediate and try and settle the matter

(iii) Court Hearing if no settlement can be achieved at mediation.

(iv) Decision and Orders. The court may order provision from the estate, which could involve a lump sum payment or other forms of financial support.

 

Family Provision and Disputed Will Claims in the Australian Capital Territory

In the ACT, the Act provides similar rights to individuals seeking a fair share of a deceased person’s estate when they have not been adequately provided for.

1. Eligibility to Make a Claim:

Spouses and De Facto Partners: Current or former spouses, and de facto partners, including those who were in a domestic relationship with the deceased at the time of death.

Children: Biological children, adopted children, and, in some cases, stepchildren.

Dependents: Individuals who were financially dependent on the deceased.

Persons in a Close Personal Relationship: Individuals who were in a close personal relationship with the deceased and relied on them for support.

 

2. Grounds for a Claim:

Inadequate Provision: An Eligible person  must show that they have not received adequate provision for their proper maintenance and support from the deceased’s estate.

Financial Need and Circumstances: The court considers the eligible person’s financial situation and needs, along with the deceased’s estate and obligations.

 

3. Application Process:

(i) Filing a Claim: Claims must be filed with the Supreme Court of the ACT, generally within 6 months from the date of death or the grant of probate.

(ii) Mediation with parties. Parties are encouraged to try and reach a settlement.

(iii) Court Hearing. If no settlement can be reached.

 

What is it the Impact on Estate Planning:

To mitigate the risk as best you can for family provision or disputed will claims, it is crucial to regularly review and update your will.

Consider the needs and circumstances of potential members and seek legal advice to ensure your will reflects your intentions and complies with the relevant Act.

Family provision claims are a crucial aspect of estate law in both NSW and the ACT, designed to ensure that family members and dependents receive fair treatment and adequate provision.

Understanding the eligibility criteria, grounds for claims, and the application process can help individuals navigate potential disputes and ensure that their estate is managed according to their wishes.

For those involved in estate planning or facing family provision or disputed will claims, seeking professional legal advice from expert Lawyers in Will Disputes can provide valuable guidance and help address any concerns effectively.

If you’re an Executor or a person left out of a will the team are here to assist with any Disputed or Contested will Claim or any Family Provision claim.

The team at Chamberlains are here to help guide you through the process. Were With You.