Eligibility for a Family Provision Claim

Overview

Family provision claims are governed by the Succession Act 2006 (NSW), which establishes the legal basis for individuals seeking a share of a deceased estate. This legislation sets out the criteria for eligibility, outlining who may bring a claim, such as spouses, children, and dependents. It also specifies the factors courts must consider, including the claimant’s financial needs, the nature of their relationship with the deceased, and any obligations the deceased had towards them. The procedural requirements for making a claim include strict time limits, generally requiring applications to be filed within 12 months of the date of death. The court has broad discretion to alter the distribution of an estate if it determines that adequate provision was not made for a claimant. This may involve redistributing assets to provide for a claimant’s maintenance, education, or advancement in life. However, claims are not automatically granted, and the court weighs competing interests, including those of other beneficiaries and the intentions of the deceased. Ultimately, family provision claims aim to balance the principle of testamentary freedom with the need to prevent undue hardship for eligible individuals.

Family Provision Claim: Common Scenarios

Spouse or De Facto Partner Seeking Provision: A surviving spouse or de facto partner may make a claim if they believe the will has not adequately provided for their financial well-being. This often arises where the estate has been primarily distributed to other beneficiaries, leaving the spouse in financial hardship. In some cases, a surviving partner may have been financially dependent on the deceased for housing, medical care, or daily living expenses. If the will provides little to no support, the surviving spouse may argue that their future needs and standard of living have been compromised. Courts will assess factors such as the length of the relationship, contributions to the deceased’s wealth, and the financial resources of the surviving spouse.

Children or Dependents Seeking Support: Children, including adult children, may seek a provision if they have been excluded from the will or received a minimal inheritance that does not meet their needs. Dependents, such as stepchildren or individuals who relied on the deceased for financial support, may also have grounds for a claim. A claim may arise where the deceased had significant assets but provided little to no financial benefit to a child or dependent in their will. The court will consider factors such as the financial needs of the claimant, their relationship with the deceased, and any past contributions they made to the deceased’s estate. In cases where a child has a disability, financial struggles, or a history of care provided to the deceased, their claim may be given greater weight.

Family Provision Claim: FAQs

Who can make a family provision claim? Eligible persons include spouses, de facto partners, children, dependents, and others with a close personal relationship to the deceased. In some cases, stepchildren, grandchildren, or those who were financially supported by the deceased may also be eligible. The court determines eligibility based on the claimant’s connection to the deceased and their level of financial dependence.

How long do I have to make a claim? In NSW, a family provision claim must be filed within 12 months from the date of the deceased’s passing, unless the court grants an extension for exceptional circumstances. If an extension is sought, the claimant must provide strong reasons for the delay, such as being unaware of the death or experiencing significant hardship. Failing to file within the time limit may result in the claim being dismissed unless the court exercises discretion to allow it.