Select Page

News Articles

What is a Family Provision Claim?

A Succession Act Claim, also known as a “family provision claim” is an application made to the Supreme Court of NSW for a share, or a larger share, of a deceased person’s estate under Part 3 of the Succession Act 2006 (“the Act”).

Author: Rachael Parr

6 May 2021

A person can make a family provision claim for the of the following reasons:

  1. The person is considered an “eligible person” under the Act;
  2. The person does not receive under the deceased’s Will; or
  3. The person did not receive what they believed they were entitled to receive.

A family provision claim must be filed in the Supreme Court of NSW within 12 months of the deceased’s date of death.

The person making the application (“the applicant”) does not need to obtain a grant of Probate from the Supreme Court or grant of Letters of Administration in order to make a family provision claim.

Further, an application for a family provision order can be made whether or not administration of the estate of the deceased person has been granted.

Who is an “eligible person”?

Eligible persons are defined under section 57 of the Succession Act 2006.

Eligible persons include the following:

  1. A spouse of the deceased at the time of death;
  2. A defacto partner of the deceased living in a defacto relationship at the time of death;
  3. A child of the deceased;
  4. A former spouse of the deceased;
  5. A person who was at any time wholly or partly dependent on the deceased;
  6. A grandchild of the deceased;
  7. Member of the same household of which the deceased person was a member;
  8. A person that had a close and personal relationship at the time of the deceased’s death.

What will the Court consider after your application has been filed?

The court takes these matters seriously. As such, there are a number of factors that the court will consider prior to making a determination of whether the applicant is an eligible person, and whether to make a family provision order. Those factors include the following:

  1. The relationship between the applicant and the deceased person;
  2. Any obligations or responsibilities owed by the deceased person to the applicant;
  3. The value of the deceased person’s estate;
  4. The financial resources and financial needs of the applicant;
  5. Whether the applicant is cohabiting with another person and the financial circumstances of the other person;
  6. Any physical, intellectual or mental disability of the applicant;
  7. The age of the applicant;
  8. Any contribution made by the applicant to the deceased person’s estate or to the welfare of the deceased person or the deceased person’s family;
  9. Any provision made by the deceased person to the applicant or the applicant’s family before or after the death of the deceased person;
  10. Any evidence of testamentary intentions of the deceased person;
  11. Whether the applicant was wholly or partly maintained by the deceased person before the deceased person’s death;
  12. Whether any person is liable to support the applicant;
  13. The character and conduct of the applicant before and after the deceased’s death;
  14. The conduct of any other person before and after the deceased’s death;
  15. Any relevant Aboriginal or Torres Strait Islander customary law;
  16. Any other matter the Court considers relevant.

Alternative Dispute Resolution

Before filing an application in the Supreme Court of NSW, the applicant can attempt to resolve the dispute through mediation.

Mediation is a voluntary alternative dispute resolution service which can be a very effective way to settle disputes between parties without the need to go to court.

Should an applicant proceed with their applicant, the court will refer the parties to mediation to encourage parties to reach a settlement.

This in turn can assist parties save time, money and stress in resolving their dispute.

Costs

If a family provision claim proceeds to court, it is important to note that legal costs do not always come out of the Estate. In the event that a family provision application is unsuccessful, the applicant may be ordered to pay their own legal costs, as well as the costs of the Defendant in the proceedings.

Contact the ALG team on (02) 4220 7100 or by email at lawyers@alg.com.au to book an initial consultation.