A family provision claim is a claim by an eligible person for the provision or additional provision from a deceased person’s estate in circumstances where they believe they have not received adequate provision for their proper maintenance, education and advancement in life under the deceased person’s Will.
In New South Wales, section 57 of the Succession Act 2006 sets out the categories of people eligible to make family provision claims. The following categories of individuals are generally eligible to make a family provision claim in NSW:
Spouse: a person to whom the deceased person was legally married at the date of his or her death.
- De Facto Partner: A person with whom the deceased was living in a de facto relationship at the date of his or her death.
- Children: This includes both biological and adopted children or children over whom the deceased had parental responsibility for their long-term welfare. Stepchildren may also be eligible in certain circumstances but under category e.
- Former Spouses: Even after divorce, a former spouse may still be eligible to make a claim. This category does not include a former de facto partner, although they may be eligible under category e.
- Persons who were dependent upon the Deceased: This category can include anyone who was wholly or partly dependent on the deceased for their financial support at any particular time. This might include parents, grandchildren and even some extended family members. If that person is not a grandchild, they must have at any particular time been a member of the household of which the deceased was a member. Former de facto partners and stepchildren fall within this category.
- Persons Living in a Close Personal Relationship with the Deceased: A close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. Close friends and carers may fall within this category.
Those who make claims as category d, e or f eligible persons must show that there was a special moral obligation owed to them by the deceased when making the claim. This is known as factors warranting.
It is essential to understand that qualification as an eligible person does not guarantee success in a family provision claim. Firstly, the law places great importance on testamentary freedom, that is the right of a person to decide how their estate should be distributed upon their death. Secondly, the family provision jurisdiction is discretionary, and the exercise of that discretion will depend on a number of factors, including the size of the estate, the quality of the relationship between the applicant and the deceased person, the financial need of the applicant and the effect of any proposed order on the named beneficiaries.
There are strict time limits when making a family provision claim in New South Wales. In general, an application must be made within 12 months of the date of the deceased’s death.
If you believe you may be eligible to make a family provision claim in New South Wales, it’s advisable to consult with a legal professional who specialises in estate and succession law. They can provide guidance on the specific requirements and processes for making such a claim. Please contact us for more information.
