A family provision claim is a claim where you make an application to the Court to get a greater share of a deceased person’s estate.

Not everyone is entitled to make such an application. You can only make an application if you are an ‘eligible person’. Each state in Australia has different categories of people who are described as ‘eligible persons’.

In New South Wales, section 57 of the Succession Act 2006 provides the definition of an eligible person. You are an eligible person if you:

  1. were the spouse of the deceased on the date of death;
  2. were living in a de facto relationship with the deceased on the date of death;
  3. are a child of the deceased (a child is a biological child, an adopted child or a child for whose long-term welfare the deceased had parental responsibility);
  4. were a former spouse of the deceased;
  5. were wholly or partly dependent on the deceased at any particular time;
  6. are a grandchild of the deceased and were at any time a member of the deceased’s household; and/ or
  7. were living in a close and personal relationship with the deceased at the date of death.

The first four categories are relatively straightforward and it will be clear to you whether you fall into one of those categories or not.

The fifth and seventh categories are more complex and, in New South Wales, the Courts have held flatmates, paid live-in carers and friends may fall within those categories subject to being able to establish that they were wholly or partly dependent on the deceased person at some stage during the deceased’s life or were living in a close and personal relationship (which does not mean a sexual relationship necessarily) at the time of the deceased’s death.

In addition to being an eligible person, in order to succeed in a family provision claim you need to satisfy the Court that:

  • there are factors that warrant the making of the application; and
  • the deceased has not made adequate provision for your proper maintenance, education or advancement in life in their will or under an intestacy.

There are a number of factors that the Court will consider when deciding whether to make a family provision order. These include (but are not limited to):

  • Your current financial circumstances relative to the value of the estate,
  • the reasons why your current financial circumstances are as they are;
  • the value of the estate and any the relative financial situation of the beneficiaries under the will as well as any other eligible persons who have brought a claim for provision;
  • the financial resources of your partner;
  • your health and any disabilities you suffer from;
  • your age;
  • any contribution you have made to the deceased’s estate or to their welfare during their lifetime;
  • your character and conduct towards the deceased; and
  • significantly, the testamentary intentions of the deceased including any statements made by him or her as to what they wished to happen and their reasons why they have made the provision that they have in their will.

A family provision claim must be brought in NSW within 12 months from the date of the deceased’s death. The Court has the power to extend that time, although it must be satisfied that there are valid reasons why the claim was not brought within the 12-month period. There are other deadlines in other states, many of which are shorter than then NSW’s deadline, so please check carefully.

If you are considering bringing a family provision claim in relation to a deceased person’s estate, we have decades of experience helping clients get a greater share of the estate. Please get in touch for a free preliminary consultation.

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