Whilst a person has the freedom to make a Will and give the property and assets of their estate to whomever they wish, this freedom is subject to the rights given to certain people under Part 3 of the Succession Act in New South Wales, which exists to ensure that adequate provision is provided to the eligible family members of the deceased person.

If someone who is an eligible family member believes that they have been left out of a Will or unfairly provided for, then a family provision claim is an avenue for that person to challenge the terms of the Will in the Supreme Court of New South Wales.

In order to make a family provision claim, you must:

  1. Be an “eligible person” under the relevant laws;
  2. Have been left out of a Will entirely or feel as if the benefit you have received is not enough for your needs;
  3. Show the Court that you have a need for further provision (i.e. a further benefit) from the estate.

We understand that there some difficult situations that come with the passing of a loved one and there are times that people may feel as if they have been unfairly provided for in the Will or completely left out of the will of a deceased person. The opposite sometimes applies where you may find yourself defending the last wishes of your loved one against such a claim by someone who was left out for a reason.

The Wills & Estates Team at Coutts works are able to help you with any questions you may have in relation to making or defending a family provision claim.

Frequently Asked Questions

A family provision claim can only be made by an “eligible person” under section 57 of the Succession Act 2006 (NSW).

The following are ”eligible persons”:

  1. A husband or wife of the deceased person;
  2. A de-factor partner of the deceased person;
  3. A former husband or wife of the deceased person;
  4. A child of the deceased person (including adopted and step-children);
  5. A person who at any time, was wholly or partially dependent on the deceased person and Who was either a grandchild or member of the household that the deceased person lived; or
  6. A person with whom the deceased person lived with in a close personal relationship.

If the eligible person is under the age of 18 years, then the family provision claim may be made by someone else on their behalf.

A family provision claim must be commenced with the Supreme Court of New South Wales within twelve (12) months of the date of death of the deceased person.

The Court may give an eligible person permission to apply if this time has lapsed in very special circumstances, but it is important that you seek professional legal advice and make your claim within the strict time period.

There are no hard and fast rules about how a family provision claim will be finalised, how long the claim will take or what decision the Court will make because each and every estate has its own unique facts and circumstances.

In every family provision claim, the Court will consider evidence about:

  1. The relationship of the applicant to the deceased person.
  2. The nature and extent of the estate assets.
  3. The nature and extent of any obligations owed by the deceased person to the applicant.
  4. The financial circumstances of the applicant.
  5. The financial circumstances of anyone else that the applicant is living with.
  6. Any physical, intellectual or mental disability of the applicant.
  7. The applicant’s age.
  8. Any contribution by the applicant to the deceased person’s estate.
  9. Any contribution by the applicant to the deceased person’s welfare.
  10. Whether the deceased person made any provision for the applicant during their lifetime.
  11. Any evidence of testamentary intentions of the deceased person (in their will or verbal statements they may have made).
  12. The character and conduct of the applicant and any other relevant person.
  13. Any relevant Aboriginal or Torres Strait Islander customary law.

Any other matter the Court considers to be relevant.