WILL DISPUTES IN NSW – FAMILY PROVISION CLAIMS
When a family member passes and you have been left out of the will or if you think that you have not been adequately provided for in the will, you could consider disputing the will by making a family provision claim. Making a family provision claim would enable an eligible family member to receive a greater share of the deceased’s estate. We are observing an increasing rise of will disputes and contested estates.
Who is Eligible to make a Family Provision claim?
In New South Wales, section 57 of the Succession Act 2006 allows certain people to make a family provision claim, for provision from a deceased person’s estate. The categories of “eligible persons’’ include:
- surviving spouse or de facto partner of the deceased;
- a child of the deceased, including adopted children;
- former spouse of the deceased;
- a person who was, at any particular time, entirely or partly dependent on the deceased;
- a grandchild of the deceased who was wholly or partly dependent on the deceased;
- a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.
An application for a family provision claim by an eligible person can be made at any time within 12 months after the death of the deceased person.
In order to make a successful family provision claim, the applicant must prove that they have not been adequately provided for in the deceased person’s will, due to financial needs of the applicant, the size and nature of the deceased person’s estate and the relationship between the applicant and the deceased.
How can a Will Dispute Lawyer assist with making a Family Provision claim
- Assessing the eligibility for a claim – the first step in making a family provision claim is to assess whether the you are eligible to make a claim. A Will Dispute Lawyer could help you to determine if you meet the eligibility criteria and advise you on the strengths of your claim.
- Negotiating a settlement, if possible – in many cases, it is possible to negotiate a settlement with the Executor of the deceased person’s estate. A Will Dispute Lawyer could help you to negotiate a settlement that is fair and reasonable, taking into account your financial and personal circumstances.
- Representing you in court – if a settlement cannot be reached, your Will Dispute Lawyer could represent you in Court. A claim for a family provision Order is commenced by filing a Summons (the Summons set out what orders you are seeking to be made by the Court) and a supporting Affidavit of evidence in the Supreme Court of New South Wales. It is important to ensure that the supporting Affidavit clearly sets out the eligibility of the applicant to make the claim and contain appropriate evidence and matters to be considered by the Court.
Making a family provision claim can be a complex and emotional process. It is important to get legal advice from a Will Dispute Lawyer who could assist you navigate through the process by assessing the strengths of your claim, negotiate a settlement or representing you in Court if necessary. If you think that you have not been adequately provided for in a deceased person’s will, contact us to discuss your options.
