By Andrew O’Donnell, Director – Edney Ryan Legal
In the era of longer life expectancy, marriage, divorce, de-facto relationships and blended families, it is important to be aware of the law around family provisions from estates, both for Willmakers and potential applicants. A Family Provision claim is a legal application by an eligible person for a share (or larger share) of an estate, regardless of what has been specified in the Will.
Who Can Make a Family Provision Claim?
Under Section 57 of the Succession Act 2006 (NSW), the following persons are eligible to make a Family Provision claim:
- A spouse (or former spouse) of the deceased (including de factos),
- A child of the deceased (including adopted and step children),
- A grandchild of the deceased,
- Dependents (wholly or partly) of the deceased,
- A person who was a member of the deceased’s household or who was in a close personal relationship with the deceased at the time of their death.
What Will the Court Consider?
Before making its determination on a Family Provision claim, the court will consider the following, along with many other factors:
- The relationship between the applicant and the deceased,
- The nature and value of the deceased’s estate,
- The financial circumstances of the applicant (including current and future needs),
- Any financial support the applicant currently receives, and whether the applicant was being wholly or partly maintained by the deceased,
- The applicant’s age,
- Any contribution made by the applicant to the deceased’s estate,
- Any provision made for the applicant by the deceased, and evidence of the deceased’s testamentary intentions (i.e. in a Will or statement),
- The applicant’s conduct and character.
Implications for Willmakers
If you are preparing a Will, it is important that your laywer has expertise in estate planning, and can explain your obligations under the Act. Whilst you cannot write a Will that excludes legitimate beneficiaries, your lawyer can advise on the best way to reduce the chance your estate will be exposed to disputes or Family Provision claims. Should a Family Provision claim be successful, legal fees are usually paid out of the estate.
Information for Applicants
In order to make a Family Provision claim you must be an ‘eligible person’ in the eyes of the Court, have been left out of a Will or feel you did not receive your due entitlements in a Will, and you must make your claim within 12 months of the date of death of the deceased. Applicants have a high rate of success in Family Provision claims and often settle by way of agreement between the parties or at mediation to avoid legal costs reducing the value of the estate. It is important to seek legal advice before making a Family Provision claim.
Please contact us on (02) 9908 9888 for information about Family Provision claims, or to ensure your Will is up to date and consistent with current laws.