You feel that you have been unfairly dealt with in a Will. The inheritance may be smaller than expected. Your share may be smaller than expected. You may have been left out entirely.
So what do you do?
First step – obtain legal advice. Martin Bullock Lawyers can help you identify your options, and the best way to proceed.
Generally, parties have two options:
- Challenging the validity of the Will. Validity challenges are often based on the claim that the testator (maker) lacked “Testamentary Capacity” when they made the Will. For more information, see our post about Testamentary Capacity.
- Making a claim for Family Provisions.
What are Family Provisions Claims?
Family Provision claims are made by “eligible persons” on a deceased Estate on the basis that inadequate/no provision was made for them under the deceased’s Will, or under the law of Intestacy.
Who is eligible for provision?
The Succession Act 2006 identifies six types of persons who may be eligible:
- The current spouse of the deceased.
- The current de facto partner.
- The child of the deceased (excluding stepchildren and foster children).
- The former spouse.
- A grandchild or member of the deceased’s household who was dependent on the deceased.
- A person in a close personal relationship with the deceased.
These persons may apply to the NSW Supreme Court (or District Court) for a Family Provision Order.
When do I apply?
Family Provision claims must be commenced within 12 months of the deceased’s date of death.
However, a claim may be made after this period if either:
- The other parties (the Estate’s Executor, etc.) consent to the out-of-time application; OR.
- The Court grants leave to bring the claim, provided the Applicant can show “sufficient cause” for why their application was delayed.
What does the Court consider?
In general terms, the Court will consider whether adequate provision was made for the “proper maintenance, education or advancement in life” of the Applicant.
In their assessment, the Court will consider matters including:
- The Applicant’s relationship with the deceased.
- The size of the deceased’s Estate.
- The Applicant’s age, personal characteristics, and financial circumstances.
- Any provision the Applicant received from the deceased during their lifetime, or under the Will/Intestacy.
- Other claims on the Estate, including beneficiaries under the Will/Intestacy, or other Family Provisions claims.
If satisfied that the Applicant was not adequately provided for, the Court will make Orders for provision from the deceased’s Estate.
Acting for the Estate in Family Provision proceedings
What happens if you are the Executor of a deceased Estate?
One of the Executor’s responsibilities is to address any Family Provisions claims made against the Estate.
If a claim is made, Martin Bullock Lawyers can assist you.
Seek Expert Advice
Family Provision claims can be complicated. You need legal advice.
Martin Bullock Lawyers can assist you to make a Family Provisions claim. If you are the Executor of an Estate, we can help you manage a claim.
If you need advice in relation to Family Provisions or any other Wills & Estates matter, contact Greg Martin or Jacqueline Wainwright on (02) 9687 9322.