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Two Stage Process of Family Provision Claims

Certain family members or eligible persons are entitled to make a claim against your Will in situations where your Will is valid but the provisions stated in the Will are inadequate. In such circumstances, the Court can make few alterations in your Will or can distribute your estate in favour of those eligible persons.

 

Such claims are known as Family Provision claims.

 

Eligible Persons Who Can Claim in New South Wales (NSW) and their Needs

 

Under Section 3 of the Succession Act 2006 (NSW Consolidated Acts) (the Act), eligible persons are those persons who can make an application for Family Provision Orders to the Court, which is in respect of the estate or notional estate of a deceased person to provide maintenance, education or advancement in their life.

 

Under Section 57 of the Act, the persons who are eligible to make claims are as follows:

  • Surviving husband or wife of the deceased person;
  • A person who was living in a de-facto relationship with the deceased person;
  • A child of a deceased person, including an adopted child;
  • A former divorced husband or wife of the deceased;
  • A person who was:
  • Wholly or partly dependent on the deceased person; or
  • A member of the household of the deceased person.
  • A person who was in a close relationship with the deceased person.

The above mentioned eligible persons can make a claim on the following grounds:

  • If they were dependent on the deceased;
  • If the share of the deceased’s property is not adequate for their maintenance and support;
  • If the relationship between the deceased and the eligible persons began after the last Will was made;
  • If the Will does not provide enough for the eligible persons who were ex-partners or children from previous marriages or de facto relationships;
  • If the eligible persons believe that the Will is grossly unfair;
  • If the eligible persons can prove that the Will maker was not in sound mind when the Will was prepared;
  • If the eligible persons can prove that the Will maker was unduly influenced by one or more of the other beneficiaries of the Will; or
  • If the Will is not clear.

Two Stage Process of Family Provision Claims

 

Under Section 60(1) of the Act, the Court applies a 2 stage process in determining Family Provision claims which are as follows:

  • Firstly, whether the persons making Family Provision claims or the persons in whose favour the Family Provision Orders are sought to be made are eligible persons, and
  • Secondly, the Court will assess and determine whether to make any Family Provision Orders or not.

In the first stage, the Court assesses whether the applicants fall under the category of eligible persons who are able to make Family Provision claims. Whereas, in the second stage the Court determines whether adequate provisions for proper maintenance, education or advancement in life of the applicants have been made and whether they are able to meet their financial requirements from their own resources.


For further advice and assistance in relation to Family Provision claims, contact our team of experts at Owen Hodge Lawyers.