Understanding Family Provision Claims in NSW: A Comprehensive Guide

What is a Family Provision Claim?

A Family Provision Claim offers a legal avenue for individuals who believe they have not been adequately provided for under a deceased person’s will.

Legal action that allows certain individuals to seek a greater share of a deceased person’s estate if they believe they have not been adequately provided for.

Under the Succession Act 2006 (NSW) family members and certain dependents can make a claim to be reasonably provided for according to their needs and circumstances.

Who can make a Family Provision Claim in NSW?

In NSW, not just anyone can make a Family Provision Claim. Under section 57 of the act specifies who is eligible to make such a claim:

Spouses and De Facto Partners
This includes legally married spouses and those who were in a de facto relationship with the deceased at the time of their death.

Children
This includes biological children, adopted children, and sometimes stepchildren or children who were part of the deceased’s family.

Former Spouses
Former spouses who have not remarried and who may still be entitled to support.

Dependents
Individuals who were wholly or partly dependent on the deceased, such as someone who lived with the deceased and relied on them for financial support.

Others
In some cases, other individuals who were in a close personal relationship with the deceased may also be eligible, although this is less common.

What are the grounds for making a Family Provision Claim?

To succeed in a Family Provision Claim, the claimant generally needs to demonstrate that:

1. Lack of Adequate Provision
   The claimant must show that the provision made for them in the will, or under the intestacy laws if there is no will, is inadequate to meet their proper needs.
2. Entitlement Based on Personal Circumstances
   The court will consider the person making the claim financial needs, their relationship with the deceased, the size and nature of the estate, and the circumstances of other beneficiaries.

What is the Family Provision Claim process?

1. Seek Legal Advice
   It’s crucial to consult with a solicitor who specialises in estate law in particular contesting estates to assess the strength of your claim and understand the legal process. Note that you only have 12 months from the date of death to make a claim.
2. File a Claim
   The claims are usually filed with the Supreme Court of NSW some applications can be in the District Court. It must be done within 12 months of the deceased’s death. However, in exceptional cases, this period may be extended with the court’s permission.
3. Prepare Documentation
   You will need to gather evidence that supports your claim, including financial records, details of your relationship with the deceased, and any other relevant information. Usually, a chronology is put together by you.

Preparing for a claim is quite a detailed process as one needs to prepare a supporting affidavit to the application. This document is quite a lengthy document and includes a lot of your evidence. That’s why its important to get the right legal advice and team working on your matter.

1. Court Hearing
   The court will review the evidence and decide based on the principles of fairness and justice. Mediation is often encouraged to resolve disputes without a full court hearing.
2. Resolution
   If the court finds that adequate provision has not been made, it may order a redistribution of the estate to provide for the claimant. This decision will be influenced by the specific circumstances of the case.

What challenges arise in Family Provision Claims?

1. Timing Issues
   Claims must be filed within 12 months of the death.
   Delays can jeopardize the claim, although extensions may be granted in exceptional circumstances. Promptly seek legal advice to ensure timely filing.
2. Disputes Over Entitlement
   Disputes may arise over whether the claimant falls into one of the eligible categories or whether they have been adequately provided for. This is why you need to provide clear evidence of dependency or relationship and demonstrate the inadequacy of the provision.
3. Complex Estates
   Estates with complex assets or significant debts can complicate claims.
   You need the right legal professionals to navigate these complexities.
4. Conflict with Other Beneficiaries
   Family Provision Claims can lead to conflicts with other beneficiaries, affecting family relationships.
   The court will usually order that the parties go to mediation first and that can be an effective way to address disputes and reach a resolution without ongoing conflict.

How can you improve your chances of a successful Family Provision Claim?

Gather Evidence Early
Comprehensive documentation and evidence will strengthen your claim and help demonstrate your needs and relationship with the deceased.

Consult with Experts
Engage with Chamberlain Law Firm to provide a thorough assessment and representation throughout the process.

Be Realistic
Understand the strengths and limitations of your claim and be prepared for negotiations and possible compromises.

Conclusion

Family Provision Claims in NSW are designed to ensure that individuals who rely on a deceased person are adequately provided for, even if the will does not reflect their needs. Understanding the eligibility criteria, the process involved, and potential challenges can help you navigate this complex area of law. If you believe you have grounds for a Family Provision Claim, seeking early legal advice is essential to protect your rights and achieve a fair outcome.

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

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