Written by Christine Vrahas, Estate Dispute and Litigation Lawyer
In NSW, Chapter 3 of the Succession Act 2006 (NSW) provides that certain eligible persons may apply to the Court for an order for provision or further provision in respect of a deceased estate in circumstances where the deceased has either not made provision or has made inadequate provision for that eligible persons proper maintenance, education or advancement in life.
Eligible persons to a deceased’s estate are set out as follows:
- spouse or de facto partner at the time of the deceased’s death;
- children (includes adopted children);
- former spouse(s);
- a person who was, at any time, wholly or partly dependent on the deceased person and who is a grandchild or was, at any particular time, a member of the household in which the deceased was a member; and
- a person who was living in a close with personal relationship with the deceased at the time of death.
The law requires the Court to consider a number of factors in hearing these claims. Such factors include, but are not limited to:
- The relationship and the extent of any obligations or responsibilities owed by the deceased to that eligible person;
- The nature and extent of the estate;
- The financial resources and financial needs of the eligible person including any person cohabiting with that eligible person;
- The physical, intellectual or mental disability of that eligible person;
- Any previous provision made by the deceased person to that eligible person in the deceased person’s lifetime; and
- The character and conduct of that eligible person.
An eligible person has 12 months from the date of death of the deceased to bring a claim. However, in certain circumstances, the Court, if satisfied, can make Orders extending the time for a claim being made.
Where a claim for provision or further provision is successful, the Court can make, for example, the following orders for provision to an eligible person out of the deceased’s estate:
- a lump sum payment;
- a periodic payment;
- a specific asset; and
- a life interest in a property or income from an investment.
If you are concerned about a potential contest of your will, contact Associate Christine Vrahas at Owen Hodge Lawyers on 02 9549 0774 who retains years of experience acting for both plaintiffs and defendants in family provision claims including that of claims made by grandchildren.