When someone passes away, disputes can arise if a person believes they have not received adequate provision from the deceased estate. A Family Provision Claim NSW allows eligible people to seek further provision where a Will or intestacy distribution does not properly meet their needs.
This article answers common questions about Family Provision Claims in New South Wales, including who can make a claim, time limits, costs, court processes, and the factors a court considers. This information is general only, and you should obtain legal advice based on your individual circumstances.
1. Am I Eligible to Make a Family Provision Claim in NSW?
To make a Family Provision Claim in NSW, you must be an “eligible person” under the Succession Act 2006 (NSW).
The most common eligible people include:
- A spouse of the deceased, including a former spouse;
- A de facto partner of the deceased, including same-sex partners;
- A child of the deceased, including an adopted child.
The law also recognises other people in certain circumstances. A person may qualify if they were partly or wholly dependent on the deceased before their death.
This may include:
- A stepchild;
- A grandchild;
- A person who lived in the same household as the deceased and relied on them financially.
Eligibility depends on the individual circumstances of each case. If you believe you may qualify, obtaining advice from an experienced estate lawyer can help you understand your options.
You can read more about eligibility requirements under the Succession Act 2006 (NSW).
2. What Is the Time Limit for a Family Provision Claim in NSW?
Strict time limits apply when making a Family Provision Claim in NSW.
Generally, an eligible person must commence court proceedings within 12 months from the date of the deceased person’s death.
Missing this deadline can create significant difficulties. However, in limited circumstances, the court may allow an extension of time.
For example, an extension may be considered where the claimant did not know about the deceased’s death or was unaware that they needed to make a claim.
3. Can You Make a Family Provision Claim If There Is No Will?
Family Provision Claims commonly arise when someone believes a Will does not adequately provide for them. However, a claim may also be available when a person dies without a valid Will.
When someone dies intestate, the intestacy laws in NSW determine how the estate passes to relatives. These beneficiaries often include spouses, de facto partners, and children.
However, some people may still need to make a Family Provision Claim against an intestate estate.
For example, a grandchild who received financial support from their grandparent may not automatically inherit under intestacy laws. However, they may still qualify to make a claim if they can show they were dependent on the deceased and require further provision.
4. Do You Have to Go to Court for a Family Provision Claim?
Most Family Provision Claims do not proceed to a final court hearing. Many disputes resolve through negotiation or mediation before litigation becomes necessary.
The executor of the estate can negotiate with eligible claimants and may agree to a settlement where appropriate.
Mediation and alternative dispute resolution often provide a faster and more cost-effective way to resolve estate disputes. They allow parties to reach an agreement without the expense and uncertainty of court proceedings.
If the parties cannot reach an agreement, the matter may proceed to court. Court proceedings can be complex, expensive, and time-consuming.
5. What Does a Court Consider in a Family Provision Claim NSW?
When determining a Family Provision Claim, the court considers the factors set out in the Succession Act 2006 (NSW).
The court will usually consider:
| Factor | What the Court Considers |
|---|---|
| Financial circumstances | The claimant’s financial needs, resources, and ability to support themselves. |
| Relationship with the deceased | The nature and length of the relationship between the claimant and the deceased. |
| Other beneficiaries | The competing needs and interests of people who benefit from the estate. |
| Contributions | Any financial, personal, or caregiving contributions made by the claimant. |
| Estate value | The size and nature of the deceased estate. |
The court’s objective is to determine whether the deceased made adequate provision for the claimant’s proper maintenance, education, or advancement in life.
6. How Much Does a Family Provision Claim Cost?
The cost of making a Family Provision Claim depends on the complexity of the matter, the legal work required, court fees, and whether the dispute resolves through negotiation or proceeds to court.
In NSW, legal costs for Family Provision Claims may sometimes be paid from the deceased estate. However, the court has discretion when making costs orders.
The outcome of the case and the conduct of each party can influence who pays legal costs.
It is important to discuss legal fees and likely costs with your lawyer before commencing a claim.
7. How Long Does a Family Provision Claim Take?
The timeframe for a Family Provision Claim varies depending on the circumstances.
Some claims resolve within a few months through negotiation or mediation. More complex disputes that proceed to court may take significantly longer.
Starting the process early and obtaining advice from an experienced estate lawyer can help avoid unnecessary delays and improve the likelihood of reaching a practical outcome.
Factors That Can Affect the Outcome of a Family Provision Claim
Every Family Provision Claim depends on its own facts. Some important factors that may influence the outcome include:
- The claimant’s financial position;
- The deceased’s relationship with the claimant;
- The reasons provided in the Will for excluding or limiting provision;
- The needs of other beneficiaries;
- The value and available assets in the estate.
Understanding these factors early can help claimants make informed decisions about whether pursuing a claim is appropriate.
Conclusion: Making a Family Provision Claim NSW
A Family Provision Claim in NSW can provide an important legal pathway for people who believe they have not received adequate provision from a deceased estate.
Understanding eligibility requirements, time limits, costs, and the factors courts consider is essential before starting a claim.
Seeking advice from an experienced estate lawyer can help you understand your rights and determine the best approach for your circumstances.
This information is general only and you should obtain professional advice relevant to your circumstances.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].