Dealing with the death of a loved one is a difficult and emotional time. These emotions may be heightened if you also find yourself left out of your loved one’s Will.
In this situation, you may have the option to make a claim against the Estate of your late loved one. This is referred to as a ‘family provision claim’ which seeks that provision, usually in the form of a monetary sum, be granted to you out of the Estate for your proper maintenance, education and/or advancement in life.
The Succession Act 2006 (NSW) (the Act) enables a court to deal with a family provision claim in relation to a deceased’s estate where the deceased died on or after 1 March 2009. The Act replaced the Family Provision Act 1982 (NSW) which continues to deal with out of time family provision claims where the deceased died prior to 1 March 2009.
Eligibility to Make a Claim
In accordance with Section 57 of the Act, people that are eligible to make a family provision claim include: spouse (husband, wife or de facto partner), child, former spouse, dependent grandchildren, dependent household members, and any person living in a close personal relationship with the deceased at the time of death.
A deceased is considered to have had a moral obligation to provide for their spouse and/or child in their Will, as such they are considered by the court to have a right for a family provision order. This means that the court often favourably considers a family provision claim made by a spouse or child.
Not all categories of eligible people have this automatic right, rather, they are required to prove to the court factors warranting which enable them to make a family provision claim. For example, a dependant grandchild must show that the dependence, whether whole or partial, was a direct responsibility on the grandparent not merely the grandparent assisting their own adult child or providing gifts to the grandchild. In addition, a former spouse may not be considered an eligible person by the court where they entered into a property settlement with the deceased during their lifetime as they are determined to have already benefited from the Estate.
Time Limit to Make a Claim
The general rule is that a family provision claim must be filed with the court within 12 months of the date of death.
From 2 July 2018, an amendment to Section 58(2) of the Act came into force. This amendment states that the court will permit an extension on the 12 month rule if all parties consent to the extension of time. This amendment encourages parties to analyse the law and merits of the claim, as well as considering any potential settlements, prior to commencing proceedings.
Snapshot:
- Succession Act 2006 (NSW) enables a court to deal with family provision claims where the deceased died on or after 1 March 2009
- People eligible to make a claim include: spouse (husband, wife or de facto partner), child, former spouse, dependent grandchildren, dependent household members, and person living in a close personal relationship
- A claim must be filed within 12 months of the date of death, unless both parties consent to an extension of time
If you have been left out of a Will and would like advice on your options, or you are interested in making a family provision claim, please contact Mr Grant Butterfield or Mr Bharath Balasubramanian on (02) 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
