When a person dies in New South Wales (NSW), their estate is usually distributed according to their will. If a person dies without a will, NSW intestacy laws determine how the estate is divided.
However, disputes can arise when someone believes the will does not make fair provision for them. A person may feel they were left out or not adequately provided for.
Key takeaway: A family provision claim allows eligible people to ask the court for a larger share of an estate if the will or intestacy outcome does not provide adequate support.
What is a Family Provision Claim in NSW?
A family provision claim is a court application. An eligible person uses it to seek a fairer share of a deceased estate.
A person can make this claim even if a valid will exists. The court may change how the estate is distributed if it finds that adequate provision has not been made for the claimant’s maintenance, education, or advancement in life.
Who Can Make a Family Provision Claim in NSW?
Under the Succession Act 2006 (NSW), only certain eligible persons can make a family provision claim.
| Eligible person | Details |
|---|---|
| Spouses | Includes married and de facto partners, including same-sex relationships. |
| Children | Includes biological, adopted, and stepchildren. Adult children can also apply. |
| Former spouses | Allowed in certain circumstances. |
| Dependants | Anyone financially dependent on the deceased, including close personal relationships where dependency existed. |
| Grandchildren or other relatives | Must show financial dependency or a close and significant relationship. |
What Does the Court Consider in a Family Provision Claim?
The court considers several factors when deciding a claim. These include both financial and personal circumstances.
- Size and value of the estate: The court considers whether enough assets exist to make an order without unfairly impacting other beneficiaries.
- The deceased’s wishes: The court considers the will, but it does not treat it as final.
- Claimant’s financial needs: Includes income, assets, debts, and support needs.
- Relationship with the deceased: Closer or dependent relationships carry more weight.
- Contributions to the deceased: Financial support or care provided during the deceased’s lifetime.
- Special circumstances: Such as disability, illness, or conduct of the parties.
Time Limits for Making a Family Provision Claim in NSW
A family provision claim must be filed within 12 months of the date of death.
The court only extends this time limit in exceptional circumstances. For this reason, early legal advice is important.
Why Choose Robbins Watson Solicitors for Your Family Provision Claim?
- Gold Coast-based firm with NSW estate litigation experience
- Decades of experience in estate disputes
- Free initial case appraisal
- Online “Get Started” option for convenience
Take the Next Step
If you believe you may have a claim, you should seek legal advice as soon as possible.
You can book a free case appraisal with one of our Gold Coast based Estate Litigation Lawyers
here.
