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Expertise

Family Provision Claims

If you believe you were incorrectly left out of a Will or that you didn’t receive a fair share of an estate, contact our team to discuss how we can make a claim for you.

In New South Wales, eligible persons who feel that they have not been adequately provided for under a deceased person’s Will can file an application with the Supreme Court for further provision to be made to them.

Contrary to popular belief, the process of contesting a Will is not a quick or necessarily straightforward process. A number of criteria must be satisfied before a potential claimant can be successful.

Additionally, many family provision claims can be resolved without the need for a Court hearing in front of a judge. Informal negotiations between parties prior to the commencement of proceedings, as well as a formal mediation process help many estates in reaching a resolution without incurring the costs of a full day (or days) of Court proceedings.

Kells has experience in assisting both claimants and executors in navigating the ins and outs of claims in order to reach a sensible and agreeable outcome.

Who is eligible to contest a Will?

Not just anyone can contest a Will. In order to commence proceedings, you must show that you are an “eligible person” in accordance with the Succession Act.

Eligible persons include:

  • A spouse of the deceased
  • A person in a de facto relationship with the deceased
  • A biological or adopted child of the deceased (step children and presumed children are not automatically included in this definition and instead must satisfy other criteria to become eligible)
  • A former spouse of the deceased
  • A grandchild, or member of the deceased’s household, whom has been wholly or partially dependent on the deceased
  • An adult person living with the deceased with a close personal relationship where support and care was provided for no reward at the time of the deceased’s death. 

Are there any time limits that apply?

Yes. A family provision claim must be made within 12 months of the passing of the deceased, with the Court being able to extend this limit in specific circumstances. This makes it important to seek legal advice as soon as possible if you are considering making a Family Provision Claim. Seeking advice early on ensures that you have the opportunity to negotiate with the estate, without the need for court proceedings to be commenced.

What may be considered relevant in a Family Provision Claim?

The Court determining whether to allow a Family Provision Claim considers a number of factors including:

  • Evidence of the deceased’s intentions, including their Will and reasoning provided
  • The provisions that have already been made to the claimant and other beneficiaries
  • The relationship between the claimant and the deceased
  • The nature and extent of the estate
  • The deceased’s obligations owed to the claimant, or any other potential beneficiary
  • The financial needs and resources of the claimant
  • Any contributions made by the claimant to the deceased’s estate or welfare
  • The claimant and other beneficiary’s age, as well as any physical, intellectual, or mental disability
  • If the deceased was maintaining the claimant, or if there is any other person liable to support the claimant
  • The character and conduct of the claimant or any other person
  • Relevant Aboriginal or Torres Strait Islander customary law
  • Any other matters the court considers relevant.

Who pays for the costs of a family provision claim?

The Court has extensive powers in the making of costs orders in relation to family provision claims. The legal costs of the executor in defending a family provision claim are usually reimbursed from the estate. A successful applicant can also seek to have most of their costs reimbursed from the estate, however an unsuccessful claimant who does not have merit to seek provision will not usually have their costs awarded and may be liable to pay further costs of litigation.

It is important to seek qualified legal advice to assist you in family provision claims, which can assist resolving disputes efficiently and cost-effectively for all parties involved. If you feel that you may be eligible to contest an estate, but are concerned about payment of legal fees, we invite you to talk to one of our solicitors about various options available.

Can I defend against a family provision claim?

Yes. If you are an executor and anticipate that an estate may be subject to a Family Provision Claim or you are a beneficiary involved in an estate exposed to a claim you should contact our offices immediately to discuss the best way to defend or defeat the claim being made.

Our experienced team can assist you in achieving a positive outcome in what can often be a distressing time. If you feel you may have a claim, contact our office immediately for a consultation as strict time limits do apply.

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