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We offer specialised legal support in handling Family Provision Claims. These claims often arise when individuals feel they have not been adequately provided for in a will. Our experienced team navigates the complexities of these claims with sensitivity and legal acumen, representing both claimants and estate executors. We focus on achieving fair resolutions that honour the intentions of the will while considering the legal rights and needs of the claimants.

Kaisha Gambell

Kaisha Gambell
Senior Associate

Step 1: Talk To Us

Reach out to Coutts Lawyers via our website, phone, or in person for a consultation on how we can help you secure your future.

Step 2: Consultation Appointment

Schedule and attend a meeting with a Coutts lawyer to discuss the specifics of your Estate matter and desired outcomes.

Step 3: We get to work

Rest assured, we’ll meticulously take care of all the legalities and processes involved in your Estate matter.

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Family Provision Claims

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 inadequately provided for, then a family provision claim is an avenue for that person to make a claim for provision from the Will in the Supreme Court of New South Wales.

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 some difficult situations come with the passing of a loved one and there are times that people may feel as if they have been inadequately 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 or given a lesser share of the estate for a reason.

The Wills & Estates Team at Coutts can help you with any questions you may have concerning making or defending a family provision claim.

Who can make a Family Provision Claim?

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-facto partner of the deceased person
  3. A former husband or wife of the deceased person
  4. A child of the deceased person (biological and formally adopted)
  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
  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.

How long do you have to make a Family Provision Claim?

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 out of time in very special circumstances, but it is important that you seek professional legal advice and make your claim within the strict time period.

What will the Court consider in a Family Provision Claim?

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 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.
  14. Any other matter the Court considers to be relevant.

Book Your Family Provision Claim Consultation Now

Introducing Kaisha

Your Compassionate Lawyer

Meet Kaisha, a Senior Associate at Coutts Lawyers & Conveyancers, and the head of our esteemed Wills & Estates Law team. With her wealth of experience, Kaisha’s blend of empathy and thoroughness not only helps her foster genuine connections with her clients but also cements her reputation as a top-tier authority in Wills & Estates law.

Kaisha Gambell
Kaisha Gambell

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Family Provision Claims FAQ’s

Common reasons for making a Family Provision Claim include feeling inadequately provided for or being completely left out of a deceased person’s Will. An eligible person can make a claim to seek provision from the estate if they have a need for such provision.

No, only “eligible persons” can make a Family Provision Claim. Eligible persons typically include spouses, de-facto partners, former spouses, children (including biological and formally adopted), dependents, and those in a close personal relationship with the deceased person.

If you miss the twelve-month deadline to file a Family Provision Claim, you may still be able to apply in very special circumstances with the Court’s permission. However, it’s crucial to seek professional legal advice and act within the specified timeframe whenever possible.

No, there are no fixed rules as each case is unique. The Court considers a wide range of factors, including the relationship between the applicant and the deceased person, the estate’s assets, financial circumstances, contributions made, and more. Therefore, the outcome of a Family Provision Claim can vary based on individual circumstances.

Coutts can offer expert advice and reliable representation to individuals dealing with Family Provision Claims. Their experienced team helps navigate the complexities of these cases, ensuring that the rights of their clients are protected throughout the legal process. If you have questions or need assistance, you can contact Coutts for guidance.

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