Brief Principles of Family Provision Claims under the Succession Act 2006 (NSW)

Family provision claims in New South Wales are governed by the Succession Act 2006 (NSW). These claims allow eligible persons to seek a share or a larger share of a deceased person’s estate if they believe they have not been adequately provided for in the deceased’s will or under the rules of intestacy. The primary objective of these provisions is to ensure that the deceased’s family and dependents are adequately maintained and supported.

Eligibility

Under the Succession Act 2006 (NSW), only certain individuals are eligible to make a family provision claim. These include:

1. The spouse of the deceased: This includes a de facto partner.
2. A child of the deceased: This includes adopted children and, in some cases, stepchildren.
3. A former spouse of the deceased: This includes spouses who have separated but have not gone through any property settlement.
4. A person who was, at any particular time, wholly or partly dependent on the deceased and who is a grandchild of the deceased or was, at any particular time, a member of the household of which the deceased was a member.
5. A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

Time Limits

A family provision claim must be made within 12 months from the date of the deceased’s death. However, the court has the discretion to extend this period if it considers there are sufficient reasons to do so.

Factors Considered by the Court

When determining a family provision claim, the court considers several factors to decide whether the applicant has been left without adequate provision and, if so, what provision should be made. These factors include:

1. The nature and duration of the relationship between the applicant and the deceased.
2. The obligations or responsibilities owed by the deceased to the applicant.
3. The size and nature of the deceased’s estate.
4. The financial resources and needs of the applicant, including their earning capacity.
5. The financial circumstances of any other person who has a legitimate claim on the estate.
6. Any physical, intellectual, or mental disability of the applicant.
7. The age of the applicant.
8. Any contribution made by the applicant to the acquisition, conservation, and improvement of the estate or the welfare of the deceased or the deceased’s family.
9. Any provision made for the applicant by the deceased, either during the deceased’s lifetime or from the estate.
10. Any evidence of the testamentary intentions of the deceased, including statements made by the deceased.
11. Whether the applicant was being maintained, either wholly or partly, by the deceased before their death.
12. The character and conduct of the applicant before and after the death of the deceased.
13. Any other matter the court considers relevant.

Court Orders

If the court finds that the applicant has not been adequately provided for, it can make orders for provision out of the estate. The provision can be in the form of a lump sum or periodic payments and can be made from the estate’s income or capital.

Conclusion

Family provision claims under the Succession Act 2006 (NSW) are designed to ensure that the deceased’s dependents and family members are adequately provided for. The court takes a holistic approach, considering various factors to determine the appropriate provision. Eligible persons who believe they have not been adequately provided for should seek legal advice promptly to ensure their claim is made within the prescribed time limits.

Should you wish to discuss your family provision claims, or estate matters please contact Solari and Stock on 02 8525 2700 or click here to request an appointment with one of our Estates Team.

Article by Rebecca Exley
Photo by Nathan Dumlao on Unsplash