Introduction

In today’s society, as a result of increased wealth, increased life expectancy and multiple partners it is almost impossible to find an individual who has not prepared a valid will setting out how his/her estate is to be divided between family members and friends.

It is a common mistake to believe that there is no legal recourse in the event of a person being part of a special class (referred to as Eligible Persons) and forming a view that he/she received only a small portion of the deceased estate or that they have been unfairly left out of the will.

Meaning of family provision claim

A “family provision claim” occurs when one party (referred to as the claimant) makes an application to the Supreme Court of New South Wales against the deceased’s estate for a portion or a larger portion of the deceased’s estate.

The three (3) essential elements required to be established by the claimant prior to commencing a family provision claim are as follows:

1. be a person within the meaning of Eligible Persons;
2. have an entitlement in respect of the deceased’s estate as a result of the claimant forming the view that he/she received only a small portion or that he/she has been unfairly left out of the will; and
3. commencing the claim within twelve (12) months from the deceased’s date of death. There is also an exception to the twelve (12) months requirement however, the Court has to be persuaded that there is sufficient cause to explain the delay and will also take into account the status of the administration of the deceased’s estate.

Who is an Eligible Person

The categories of Eligible Persons are outlined in the Succession Act 2006 (NSW) and are as follows:

1. a spouse (husband/wife) of the deceased at the time of death;
2. a de-facto partner of the deceased at the time of death;
3. a child of the deceased;
4. a former spouse (husband/wife) of the deceased;
5. a person who was wholly or partly dependant on the deceased and
   • who is a grandchild of the deceased or
   • was at any time a member of the deceased’s household.
6. a person with whom the deceased was living in a close person relationship at the time of death.

What does it mean to be a “de-facto partner” and a person living in a “close personal relationship”

• “de-facto partner” means that there is a relationship as a couple living together and they are not married to another or related by family.
• “close personal relationship” means that they are living together and one provides the other with domestic support and personal care without charging a fee or receiving a fee or reward in return.

What happens if the Eligible Person is a minor or someone with a mental disability

If this situation applies, steps are required to be taken for a tutor to pe appointed on behalf of the Eligible Person. In most instances, the tutor is a relative or a friend.

What is taken into account after a family provision claim is commenced

The Succession Act 2006 (NSW) outlines matters that may be taken into account by the Court when deciding whether or not to make a provision out the deceased’s estate in favour of the claimant:

1. any family or other relationship between the claimant and the deceased.
2. the nature and extend of any obligations or responsibilities owed by the deceased to the claimant.
3. the value of the deceased’s estate.
4. the financial resources, earning capacity and needs of the claimant.
5. the financial circumstances of any person with whom the claimant is cohabitating.
6. any physical or mental disabilities affecting the claimant.
7. the age of the claimant.
8. any contributions (financial or non-financial) by the claimant to the deceased’s estate or the welfare of the deceased for which adequate compensation was not received.
9. any provision made in favour of the claimant by the deceased, either during life or in the will.
10. whether the claimant was being maintained (wholly or partly) by the deceased.
11. the character and conduct of the claimant.

What should you expect after starting a family provision claim

There is no exact formula for the manner in which a family provision claim will develop as it is dependent on the circumstances and facts of each case. In addition to these aspects, there are other matters that need to be taken into account, such as: the value of the deceased’s estate, the number of beneficiaries, the evidence and most importantly, the willingness of all concerned parties to reach a settlement and not maintain a litigious attitude.

Most often, family provision claims that are commenced properly, have high success rates. The majority of family provisions claims are resolved by settlement negotiations (either privately between the parties or at a mediation) and only a small percentage are determined by the Court.

Seek advice early

It is important that you seek advice early if you believe that there are circumstances which would entitle you to commence a family provision claim against a deceased’s estate as there are strict rules governing this process.

Costin Stan at FCW Lawyers is a Contested Estates practitioner and is always willing to help you understand what your rights are and will always guide you to make the best decisions.