We understand what a difficult time it is for your family when a loved one dies. We can assist you with the management of a deceased estate by tailoring our advice and support to ensure you receive all the advice the family needs. You will not have to manage the often tedious legal proceedings that are required in obtaining the grant of Probate and Administration of deceased estates.
We have the experience and sensitivity to work with you through the stages of administering the deceased state regardless of the complexity.
We will manage the legal and administrative aspects so that you can focus on your family when they are most in need.
A person can transfer their estate to whomever they wish to, through their Will, but the freedom of disposition of an estate is not exactly true.
From 1 March, 2009, the New South Wales Succession Amendment (Family Provision) Act 2008 commenced its operation and the purpose of this new Act includes repealing the Family Provision Act 1982 and amending the Succession Act 2009 (the Act) to ensure that adequate provision is provided to the family members of a deceased person and certain other persons from the deceased person’s estate.
People can make Family Provision Act claims against a Will in situations where the Will is valid but the provisions stated in the Will are unfair. In such circumstances, the Court can make changes in the Will or can distribute the estate in favor of those people.
What is a family provision claim?
A family provision claim is an application to the Supreme Court of New South Wales for a share or a larger share from the estate of a deceased person.
You can make a family provision claim if you:
- are an ‘eligible person’, and
- have been left out of a will, or
- did not receive what you thought you were entitled to receive.
A family provision claim must be filed with the court within 12 months of the date of death (where the deceased person died on or after 1 March 2009).
Who is eligible to make a family provision claim?
A family provision claim can only be made by an ‘eligible person’.
An ‘eligible person’ includes:
- the wife or husband of the deceased
- a person who was living in a defect relationship with the deceased (including same sex couples)
- a child of the deceased (including an adopted child)
- a former wife or husband of the deceased
- a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.
What will the court consider?
Before making an order, the court will consider the following:
- the relationship between the applicant and the deceased person
- any obligations or responsibilities owed by the deceased person to the applicant
- the value and location of the deceased person’s estate
- the financial circumstances of the applicant, including their current and future financial needs
- whether the applicant is financially supported by another person
- whether the applicant has any physical, intellectual or mental disabilities
- the applicant’s age
- any contribution made by the applicant to increase the value of the estate
- whether the deceased person has already provided for the applicant during their lifetime or from the estate
- whether the deceased person provided maintenance, support or assistance to the applicant
- whether any other person is responsible to support the applicant
- the applicant’s character
- any applicable customary law if the deceased was Aboriginal or Torres Strait Islander
- any other claims on the estate
- any other matter the court may consider as relevant.
The chances of your family members and other persons succeeding in Family Provision Claims and the amount which the court may order depend upon a number of different factors including their relationship with you, the size of your estate and the number of dependents and relatives you have.
For more information on Deceased Estates and Disputed Deceased Estates contact our office.