It’s important to know that:
  • Will makers don’t always get it right.
  • Blended families are on the rise.
  • People are marrying more than once.
  • Strained family relationships are not uncommon.
  • People are living longer and often make many Wills.
  • Elder abuse and undue influence are on the rise.
Family Provision Claims – What are they?

In NSW a person can apply to the Supreme Court seeking provision, or additional provisional, from an estate of a deceased person.

The onus is on the applicant to prove that they have been left without adequate and proper provision for their maintenance, education and advancement in life.

Who can apply to the court?

Firstly, the court must be satisfied that the applicant is an eligible person. This is a threshold question and if an applicant fails to reach this threshold the claim fails.

The categories of eligible persons are as follows:

(a) a person who was the spouse of the deceased person at the time of the deceased person’s death;

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;

(c) a child of the deceased person;

(d) a former spouse of the deceased person;

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased       person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member;

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Some categories of eligibility are relatively uncontroversial and include the wife or husband or a child of the deceased. However, some of the other categories of eligibility may be more difficult to prove and often will be fact specific.

Is there a time limit to bring a claim?

In NSW a family provision claim can be brought:

  1. Within 12 months of the date of death of the deceased;
  2. Outside 12 months from the date of death provided the court is satisfied there is ‘sufficient cause’ for bringing the claim outside of this time; or
  3. The parties consent to the application being made out of time.

It is important that any applicant considering their options pursuant to the Succession Act seeks legal advice as soon as possible after the death of the deceased person.

What does the court consider?

There are a range of factors that the court consider when dealing with a family provision claim. These include:

  1. The relationship between the deceased and the applicant;
  2. The nature and extent of obligations the deceased person owed to the applicant;
  3. The nature and extent of the deceased person’s estate;
  4. The financial resources, both present and future, of the applicant;
  5. Contributions made to the deceased person’s estate;
  6. Conduct of the applicant as well as conduct of any other beneficiaries of the estate;
  7. Competing claimants and the nature; as well as
  8. A range of other factors the court may consider relevant.

Contested Probate Hearings

Other types of will disputes are commonly referred to as contested probate hearings. These types of suits involve a challenge to the validity of a will. These types of claims include:

  1. Testamentary Capacity;
  2. Undue influence;
  3. Fraud; and
  4. Knowledge and Approval.

Generally, there will be a dispute between parties regarding an earlier will and a later will. Often medical and lay evidence will be required to prove or disprove the validity of the deceased person’s will.

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