So you have been left out of a Will – now what?

If you have been left out of a Will, or are included in a Will but do not feel that you have been adequately provided for, you may be able to make an application for a Family Provision claim on a deceased estate.

What is a family provision claim?

 This is an application made to the Supreme Court of NSW which allows you to receive a share of the deceased’s estate, which may include a distribution which is different to that the deceased left in their Will.

A Family Provision claim must be made within 12 months from the date of death of the deceased will maker. Furthermore, a Family Provision claim can only be made by a limited number of people, who are ‘eligible persons’ to make a claim as defined by section 57 of the Succession Act 2006 (NSW)[1].

What is an eligible person?

The following are ‘eligible persons’ in the eyes of the Court:

• the wife or husband of the deceased
• a person who was living in a de-facto couple with the deceased
• a child of the deceased, including an adopted child
• a former wife or husband of the deceased
• a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
• a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.

What will the Court consider?

If you are an eligible person, the court then takes into account a range of different considerations which are set out in section 60(2) of the Act[2]. Whilst the court provides general guidelines as to what they take into account, no one matter will be the same and in each case the Court will have regard to the individual circumstances of that case. As such, in considering whether adequate or proper provision has been made, the Court has regard to the exhaustive list of factors which include the relationship between you and the deceased and the nature of the estate as well as the applicant’s current financial situation and their future needs.

How do I make a claim?

In New South Wales, Family Provision claims are commenced by way of a Summons filed in the Supreme Court of New South Wales which sets out the orders you are seeking from the Court.

In support of your application, you will also need to prepare an affidavit setting out the basis of your claim as well as covering the eligibility requirements and considerations from 60(2) of the Act[3]. It is also necessary to file and serve a Notice of Eligible Persons which identifies all the potential people who are eligible to make a claim on the estate together with an affidavit that provides the estimated costs and disbursements up to and including the point of alternative dispute resolution.

Court proceedings are stressful, costly and time consuming in nature and these stressors are evident for individuals involved in family provision claims. We understand that making a family provision claim can add additional stress to what is already a difficult time. However, at Kells we are here to help you. Contact us today to so we can discuss your options.

This article was co-authored by Law Cadet Meg Behl-Shanks.

[1] Succession Act 2006 (NSW) section 57

[2] Succession Act 2006 (NSW) section 60(2)

[3] Succession Act 2006 (NSW) section 60(2)

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