NSW Family Provision Claims

Challenging a Will.

Despite popular claims, leaving your relative $1 in your will does not stop them from challenging it – not in Australia, anyway! Australian law recognises that whilst you are free to write anything you want in your will, there exist certain moral and social obligations which extend beyond your own lifetime.

Family provision claims are the most common form of will challenge and come about when an “eligible person” believes that he or she has been left inadequate provision for their maintenance, education and advancement in life. If a family provision claimant can convince the Supreme Court that their inheritance is inadequate, the Court may use its powers to override the terms of the will, or the rules of intestacy.

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Whilst around 800 Family Provision claims are filed in the Supreme Court of New South Wales each year, only a handful see their way to a final hearing. Most claims settle during mandatory mediations, saving time, stress and expense for all involved. Additionally, executors may also settle claims prior to the mediation, by negotiating a settlement with the claimant, and with consent of the residuary beneficiaries of the estate.

If a negotiated agreement is not reached, and the will-dispute case proceeds to a final hearing at the Supreme Court, the main factor which judges consider when assessing family provision claims is the financial need of the claimant. However, there are many other factors which are taken into account, such as:

• the relationship of the claimant and the deceased.
• the reasons why the claimant was left out of the will.
• what contributions the claimant made towards the estate during the will-maker’s lifetime.
• how dependent the claimant was on the will-maker during their lifetime.
• the size of the estate
• the circumstances of the other beneficiaries

National Probate and Estates Group has helped many claimants and defendants in family provision proceedings, and always prioritises a quick, just and cheap approach to settling estate disputes.

If you are considering making a family provision claim against a deceased person’s estate, our Wills and Estates lawyers are available to advise you on your prospects, the process and the costs involved. Contact us here for an obligation-free discussion regarding your matter.

Eligible Persons.

Am I Eligible to make a family provision claim in NSW?

The law has recognised that certain people, above others, possess a “moral claim” to their loved one’s estate. Traditionally, these are people who shared a relationship of dependency, or co-dependency with the deceased.

In NSW, the categories of people, known as ‘eligible persons’, who are able to make family provision claims are listed under Section 57 of the Succession Act 2006 (NSW), and they include:

1. A wife or husband of the deceased person at the time of the deceased person’s death;
2. A person living in a de facto relationship (including same-sex relationships) with the deceased person at the time of the deceased person’s death;
3. A child of a deceased person
4. A former wife or husband of the deceased person;
5. A person who:
   1. was at any time wholly or partly dependent on the deceased person;
   2. is a grandchild of the deceased person; or
   3. was a member of the household of which the deceased person was a member;
6. A person with whom the deceased person was living in a close personal relationship

The last two categories in this list allow for many different types of people to make family provision claims in NSW. The following is a list of previously successful applicants:

• Brothers
• A former de facto wife
• A fiancé
• A former same-sex de facto partner
• A nephew
• A person living in a non-sexual, close personal relationship with the deceased

Claimants in these categories have an additional hurdle, in that they must also prove to the Court that there are “factors warranting” the bringing about of the family provision claim. These factors are not defined, but they should have the effect of demonstrating the moral claim of the applicant on the estate of the deceased.

Whilst not a factor of it’s own, it is vitally important that the applicant can demonstrate “need”. This is because claimants must demonstrate that the provisions left for them have been inadequate to meet the claimant’s proper maintenance, education or advancement in life. Consequently, it is important for the claimant for family provisions to know – what are my needs, and how much do I need from the estate? The best claims are those that can demonstrate needs, as well as a strong moral claim to the estate.

Find out if you are eligible today

Adequate provision?

In order to successfully contest a will, and to succeed in a Family Provision claim, an applicant must not only come be eligible but must also be able to demonstrate that the deceased failed to make adequate provision for them in the their will.

The term ‘Adequate provision for the proper maintenance, education or advancement in life’ is found in Section 59 of the Succession Act 2006 (NSW) and is considered by the Court when determining family provision proceedings.

When considering whether a deceased person made adequate provisions in the Will for an eligible applicant, the court will determine whether the provisions, if any, were ‘adequate’ or ‘proper’ in the context of the applicant’s claim, and their individual financial and life circumstances. The word ‘adequate’ is concerned with the proportion received under the Will.

The word ‘proper’ prescribes the social expectations that go beyond monetary value.

For example, if a will-maker gifted 50% to his healthy, and financially stable adult daughter and 50% to his teenage disabled son, the son may be in a position to make a family provision claim, arguing (by his tutor) that such provisions are not “adequate” to meet his future needs.

Consequently, terms ‘adequate’ and ‘proper’ must be considered in the context of:

• The age, sex, condition, lifestyle and situation of the applicant
• The applicant’s needs and the resources they require for meeting those needs
• The nature, extent and character of the estate and other claims upon it
• What the will-maker regarded as superior claims or preferable dispositions

What is adequate provision for one claimant, may not be adequate for another. In 2015, one particular daughter of an iron ore magnate successfully claimed $25 million in provisions from her late father’s estate, claiming that she required such funds for, amongst other things, a crystal-encrusted grant piano, and $2,00 for annual upkeep of her pet axolotl.

Contact us here to have an obligation-free discussion with our wills and estate litigation, to see whether you have been left with inadequate provisions.

If you’ve been unfairly left out of a will, or deserve more, you might be entitled to challenge the will. At National Probate and Estates Group we'll get you the claim that you are entitled to.

Next Steps:
Read about our Will Challenging service
Frequently Asked Questions about Contesting Estates
Find out your chances in succeding in your claim
Contact Solicitor Gennadi Dobrinski