Making a Family Provision Claim

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Those who are dependent upon someone else to help them maintain their lifestyle may not always be included in that person’s Last Will and Testament. When this happens the person who was a dependent, in some form or another, might find themselves without adequate financial support which can affect their ability to provide food, shelter, clothing and an education for themselves. In these cases, the dependent might be able to make a family provisions claim in accordance with Section 3 of the Succession Act 2006.

The first step in determining if someone is eligible to make such a claim is reviewing the list of eligible circumstances that would qualify for a disbursement from the deceased’s estate. People who might qualify as a dependent include;

  • A surviving spouse or child or step-child or adopted child
  • A de-facto partner
  • A divorced spouse
  • A dependent grandchild
  • A person in a close personal relationship with the deceased at the time of their death

Depending upon the nature of the relationship, it is possible that even after having been left out of the will, or having not received enough to maintain the level of support the deceased was providing, a dependent person could still receive an award or an increase in their benefit from the estate of the deceased.

In order to qualify for a benefit from the estate, or an increase in a nominal benefit from the estate, the dependent would need to show at least one of the following circumstances caused their reliance on the deceased;

  1. The level of support the deceased was providing to the dependent
  2. The type of support the deceased was providing to the dependent
  3. The age of the dependent
  4. The mental health and abilities of the dependent, including any physical or mental disabilities that hamper the dependent’s ability to provide for themselves
  5. If there is anyone else supporting and/or assisting the dependent
  6. Any support or assistance the dependent might have provided to the deceased or contributed to the estate of the deceased

Examples that might sway the Court to consider providing support to an unnamed person or increasing the amount to an identified beneficiary could include;

  • If the deceased was paying the dependents rent and/or mortgage
  • If the deceased was paying any or all of the dependent’s educational expenses; including tuition, room, board, books, meals
  • If the deceased made regular monthly payments to the dependent
  • If the deceased was responsible for paying for health care or nursing services or nursing home residential fees
  • If the deceased was providing funds for basic needs such as sufficient food and clothing

The first step in making a family provision claim requires making an application through the Supreme Court of New South Wales. This is a time-consuming process and does have a fee attached to filing the claim. Therefore, be sure that you at least review the initial requirements for a person who may have the right to make a family provision claim before beginning this process.

The second step is that the Court will refer the parties to a mediation, also known as an alternative dispute resolution. This process can be very helpful and provide a quick resolution by allowing the parties to review the circumstances of the request and enter into an agreement to provide for the party making the application.

The third step needs only come about if the attempt to settle the issue fails. In this instance, the Court will hold a hearing, hear testimony and review evidence presented by both sides. This is a costly and lengthy process which can create tremendous stress for all involved. So, if it is at all possible, it is best to resolve the issue by means of mediation and a settlement agreement.

While it can be quite distressing to lose a source of financial support or not to receive an expected benefit, it is important to seek assistance from a legal professional who understands the requirements and process in filing a family provisions claim. Taking this initial step will help you assess the viability of your claim and allow you to make a well-informed decision, prior to moving forward.

In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 780 770.



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