Family Provision Claims
25 September 2023 | Wills & Estates
When a persons files a family provision claim seeking provision or additional provision from a deceased estate, it can cause significant financial and emotional strain to the parties involved. Seeking legal advice can assist estate executors and beneficiaries alike to reach a pragmatic, cost-effective and timely resolution of the claim so that the main focus can be estate administration and bequest distribution.
What is a Family Provision claim?
The NSW Supreme Court is given the power under the Succession Act 2006 to make provision out of the estate of a deceased person in favour of someone who is eligible. An order will be made if the Court believes that either no provision has been made for that person or that such provision as has been made is not adequate for his/her proper maintenance, education or advancement in life.
Who is eligible to make a claim?
Persons who may make a Family Provision claim include:
wife or husband at the time of death;
de facto partner at the time of death;
child;
former wife or husband;
a grandchild who was dependent on the deceased at any particular time – wholly or partly;
a member of the household of which the deceased was a member and, at any particular time, wholly or partly dependent on the deceased; and
a person who was in a “close personal relationship” with the deceased at the time of death, defined in the Act as a relationship (other than a marriage or a de facto relationship) between two adults, whether or not related by family, who are living together in a close personal context, one or each of whom provides the other with domestic support and personal care.
The Act gives a broad definition to “child” to include those who are:
adopted by both parties to a relationship;
born in a de facto relationship;
in the case of a de facto relationship between two women, a child of whom both are presumed to be parents by virtue of the Status of Children Act 1996; and
a child for whose long term welfare both parties have parental responsibility within the meaning of the Children and Young Person’s (Care and Protection) Act 1998.
When can an application be made?
Not later than 12 months after the date of the death of the deceased. The Court can make an order granting leave to extend time if “sufficient cause” is shown. An application for a Family Provision order can be made whether or not administration of the estate of the deceased person has been granted.
What test will the Supreme Court apply in determining whether to make a Family Provision order?
Section 59 provides that a Family Provision order can be made if the Court is satisfied that:
the person who seeks the order is eligible;
if the eligible person is a former wife or husband, a grandchild/dependent, a “member of the household”/dependent, or someone in a “close personal relationship” – there are factors that warrant the making of the application having regard to all of the circumstances of the case;
no adequate provision for the proper maintenance, education or advancement in life for the person has been made in the will of the deceased.
What factors will the Court consider?
There a long list of matters set out in Section 60 of the Succession Act 2006 (NSW) that may be considered by the Court in determining an application. These include:
any family or other relationship between the applicant and the deceased;
the nature and extent of any obligations or responsibilities owed by the deceased to the applicant;
the nature and extent of the deceased person’s estate;
the financial resources (including earning capacity) and financial needs – both present and future – of the applicant;
if the applicant is cohabitating with somebody else – the financial circumstances of that other person;
any physical, intellectual or mental disability of the applicant;
the applicant’s age;
any contribution (financial or otherwise) by the applicant to the acquisition, conservation or improvement of the estate of the deceased, or to his/her welfare – for which the applicant has not received adequate consideration;
any provision made for the applicant by the deceased during the deceased’s lifetime;
evidence of testamentary intention of the deceased;
whether the applicant was being maintained, wholly or partly, by the deceased at the time of death;
the character and conduct of the applicant before and after the date of death;
any relevant Aboriginal or Torres Strait islander customary law; and
any other matter the court considers relevant.