Often losing a family member invokes feelings of grief and sorrow.
However, in some situations, the question of adequate inheritance and disputes between family members will cause further pain and suffering.
This guide will talk about your rights in relation to inheritance, and when you can use the court provided remedies to seek to resolve your dispute with a deceased estate. If you wish to discuss a potential claim, feel free to contact us for a no-obligation chat (by phone or in our Belrose office), which you can book here.
FAMILY PROVISION CLAIM
Under section 57 and chapter 3 of the Succession Act 2006 (NSW), “eligible persons” are entitled to seek an order from the Court for further provision from an estate.
Eligible Persons are defined in section 57 as:
- a spouse of the deceased at the time of death,
- a de facto partner of the deceased at the time of death,
- a child of the deceased,
- a former spouse of the deceased person,
- a person—
- who was, at any particular time, wholly or partly dependent on the deceased person, and
- who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Orders for further provision from an estate are called “Family Provision Orders”. The Court will grant such an order if they determine that the eligible person was not adequately provided for by the deceased estate.
The Court considers a wide range of factors listed in section 60 of the Succession Act such as:
- Whether the applicant is an “eligible person”;
- Whether the applicant has been provided for during their lifetime by the deceased;
- The relationship between the applicant and the deceased.
- The financial resources and needs of the applicant or any other person receiving a benefit from the estate. This means that the court will not grant an order for provision if the applicant does not have a genuine need.
- The age of the applicant, and whether they have any physical or mental disabilities which need to be considered.
If you believe that you are an eligible person under this definition and that you should qualify for further provision, you can make a claim against the estate.
TIMING FOR MAKING A CLAIM
You must apply to the court within 12 months from the date of death of the deceased.
There is a provision in the Act to allow the court to grant leave (ie. give you permission) to allow you to claim after this time. However, there is no guarantee a court will give this permission, and you will have to have an exceptionally good excuse as to why you should be allowed to do so.
WHO TO MAKE A CLAIM AGAINST?
A common mistake that is made by those who feel they have not been adequately provided for is to not claim against the correct person at the time of death.
Some people typically think that the appropriate time to make a claim on the estate is after both people in a marriage have passed away. For example, a father passes away and has both a daughter from a previous marriage as well as a new spouse who is not the mother of the daughter. The father leaves everything to the new spouse. The daughter then does not contest the provision of the estate, thinking that she will be able to make a claim against the new spouse once she passes away. This is incorrect, as the daughter only has a claim against her father, not the spouse.
It is best practice to seek legal advice as soon as you are aware that a family member has passed away, and that you have not been adequately provided for in their will.
WE CAN HELP
Here at Eleven Legal, we have extensive experience in family provision claims to ensure that you have the best chance at making a successful claim. Please contact our team at Eleven Legal and we will be happy to guide you through the process, either in person at our Belrose office or over the phone.
