In New South Wales there are several ways in which you can challenge a will. This article covers one of the most common ways, which is known as making a ‘family provision’ claim. This is basically a claim made by a person close to the deceased (such as a family member) who has not been adequately provided for in the will.
In determining whether to make an order for family provision, the court will consider:
Whether the person making the claim is an eligible person;
Whether there are factors which warrant the making of the application; and
Whether or not adequate provision has already been made by the will of the deceased person, or by operation of the relevant intestacy rules.
Who Is An Eligible Beneficiary ?
The Succession Act 2006 (NSW) states that the following people are eligible to apply to a court for a family provision order in relation to the estate of a deceased person:
A spouse or de facto partner of the deceased person;
A child of the deceased person;
A former spouse of the deceased person;
A person who was wholly or partly dependent on the deceased person and is a grandchild or member of the household of the deceased person; or
A person who was living in a close personal relationship at the time of the deceased person’s death.
What Factors May Warrant The Making Of A Family Provision Order ?
When considering whether to make a family provision order, the court may give consideration to some of the following factors:
Any family or other relationship between the applicant and the deceased person;
The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant;
The financial resources and needs of the applicant;
Any physical, intellectual, or mental disability of the applicant;
The age of the applicant;
Any contribution by the applicant to the acquisition, conservation, and improvement of the estate of the deceased person;
Any provision already made to the applicant during their life;
The character and conduct of the applicant; and
Any other matter the court considers relevant.
This list is non-exhaustive, and there are additional factors that may be considered by the courts.
We Can Help
If you believe that you or someone you know has been left out of a will, it’s important that you seek urgent legal advice. Family provision claims are subject to strict timelines, and if you miss the relevant deadlines, you can lose the right to make a claim forever.
At Thornton + King our estate team have decades of experience in dealing with family provision claims and complex estate disputes. We’d love to help you. Give us a call or submit an enquiry now.
