What is a family provision claim?
If you have been left out of a Will or believe you have been unfairly provided for, you can make an application to the Supreme Court of New South Wales. This is an application for a share, or a larger share, of an estate of a deceased person and is called a family provision claim.
A family provision claim must be filed with the Court no later than 12 months from when the person passed away.
Who is eligible to make a family provision claim?
The Succession Act 2006 states that an eligible person who may apply to the Court for a family provision order is:
- a spouse or former spouse of the deceased person
- a person that was in a de-facto or domestic relationship with the deceased person
- a child or grandchild of the deceased person
- someone dependent on the deceased person
- a person who had a close personal relationship with the deceased person
- a person who shared the same household with the deceased person
- A family provision application must be filed with the court within 12 months of the date of death.
The Judge will consider various factors when considering your family provision application, such as:
- Your relationship with the deceased
- Any contributions you made to the deceased’s estate
- The size and value of the estate
- Whether you have a mental or physical disability
- Your financial position
- Your age and health
- Any hardship you may receive as a result of not being adequately provided for under the Will
How is a claim made?
A family provision claim is made to the Supreme Court of New South Wales. Initially, the person making the application will file a summons and a supporting affidavit. The summons sets out what you are seeking to receive from the estate of the deceased person. The supporting affidavit will set out reasons why you are eligible to make a claim and any factors to be considered by the Judge.
The process can take any amount of time, depending on the circumstances. Factors that can influence how long the proceedings will take include:
- The attitude and willingness of the parties
- The gathering of evidence on the makeup of the estate
- Whether a grant of probate has been given
- Whether the parties can negotiate a settlement
Applicants generally have a high success rate when making a family provision claim and most claims are settled by agreement or mediation. Legal Costs are often paid out of the estate, so settling early will minimise any legal costs that may reduce the estate's value.
If the matter cannot be negotiated and settled early, the parties will be required to attend a first directions hearing, mediation, directions hearing and then make consent orders to finalise the matter.
We are here to help
Making a family provision claim can be a complex and lengthy process and it is recommended that you seek professional legal advice when deciding whether to make one.
Our solicitors specialise in Wills & Estates matters throughout the Central Coast, the Hunter Region and Sydney. We have the experience and expertise to guide you through the process from beginning to end to ensure your peace of mind.
If you would like assistance with your Wills & Estates documents or wish to discuss a matter of concern to you, contact one of our Wills & Estates specialists on 1800 457 973 or fill in our contact form to arrange a free conference with a solicitor today.
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