In Australia different states and territories apply different criteria as to who may make a claim, or contest, a Will if they feel they feel they have been inadequately provided for in the Will or have been excluded from the Will altogether. Different time limits for claims may also be relevant depending on where you live and where the deceased resided and made their Will.
If you are thinking of making a claim against a Will or you are the Executor of an estate where a claim has been made our specialist lawyers can advise you on how best to proceed with a view to managing and resolving the dispute without unnecessary costs being incurred and with the minimum amount of disruption and stress for all parties.
This is an important consideration in any Family Provision claim because often the costs of any litigation that arises out of a dispute over the Will are paid out of the asset pool of the estate. When this happens the beneficiaries of a deceased estate may find that the cost of any dispute can all too quickly reduce the available asset pool considerably.
Eligible Persons in New South Wales
In New South Wales in order to be able to bring a Family Provision claim under the Succession Act NSW you must come within the prescribed categories of an “eligible person”.
An “eligible person” includes:
- The spouse of the deceased (as at the time of the deceased’s death);
- An individual living in a de facto relationship with the deceased at the time of their death;
- A former spouse of the deceased;
- An individual who was either wholly or partly dependent on the deceased at the time of their death;
- A grandchild or member of the deceased’s household;
- Someone who lived in a close personal relationship with the deceased at the time of their death. This category could cover two adults who lived together and provided care and domestic support without receiving payment for that support. Although parents, sibling, step-children and former de-facto spouses are not expressly listed as eligible persons it is possible that they may be eligible to make a claim if they are able to show that they lived in a close personal relationship with the deceased and were dependent on the deceased for support at the time of the deceased’s death.
As each estate and the circumstances that give rise to a claim on the estate will be unique it is not possible to apply a simple mathematical formula to how an estate will be divided up in the event of a dispute.
Family Provision claims are often hard fought, very emotionally draining and particularly complex pieces of litigation and whether you are thinking of bringing a claim or defending a claim as an Executor it is essential that you obtain legal advice from a lawyer with experience in this very unique area of the law.
Our team of Wills & Estate lawyers are very experienced in handling these sensitive and at times highly emotive disputes. They are also very skilled at negotiating successful resolutions which can enable all parties to move on with their lives with as little distress as possible.
We appreciate that Family Provision claims can be very stressful for all involved and we look forward to working with you to achieve a favourable outcome.
Grounds for Making a Claim
In order to successfully contest a Will and succeed on a Family Provision claim an individual must not only come within the category of eligible persons but must also be able to demonstrate that the deceased failed to make adequate provision for them within the Will.
Factors that the Court will take into account when determining any claim include a claimant’s financial position and their relationship with the deceased. The Court will also take into account the size of the estate, other persons who are eligible to make a claim on the estate and the deceased’s relationship with any other eligible beneficiaries.
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