Family Provision Claims in NSW

While you might reasonably expect that if you make a valid will your estate will be distributed as specified in your will (unless there are exceptional circumstances), this is not, in fact, the case.

The freedom to leave assets by your will is subject to one exception – that you must first fulfil what has been described as a “moral duty” to make adequate provision in your will for the maintenance, education or advancement in life of those people for whom the community would expect such provision to be made.

What is a family provision claim? If someone considers adequate provision for their maintenance, education or advancement in life has not been made for them in a will (or, where someone dies without a will, under the rules of intestacy), they may bring what is known as a “family provision claim” – an application for a share (or a larger share) of the deceased’s estate.

Who can bring a family provision claim? In NSW, family provision claims are governed by the Succession Act, which provides that only the following people are eligible to make a family provision claim:

• A spouse (or former spouse) of the deceased;

• A de facto of the deceased at the time of their death;

• A child of the deceased;

• A person with whom the deceased was living in a close personal relationship at the time of their death;

• A person who is a grandchild of the deceased and was dependent on the deceased at any stage of their life;

• A person who is/was a member of the deceased’s household and was dependent on the deceased at any stage of their life.

How do the courts determine whether proper and adequate provision has been made? Section 60 of the Succession Act identifies 15 different matters the Court will, where relevant, consider in determining a family provision claim; however, the Court may take into account any matter it considers relevant. Issues such as the claimant’s financial position, the size and nature of the deceased’s estate, and the relationship between the claimant and deceased are always considered.

Each claim will be determined differently based on its own particular set of facts, however, in broad terms, the Court will compare the provision made for the claimant with the claimant’s “needs” that cannot be met from his or her own resources in order to determine whether proper and

adequate provision has been made. “Need” in this context is relative and, depending on the circumstances of the deceased and the claimant, adequate provision may mean anything from bare subsistence up to anything short of sheer luxury. For example, if a desire to improve one’s standard of living or fulfil career ambitions is hindered by lack of financial means, that may present a need for assistance. If an Estate is wealthy and was able, but failed, to provide such assistance, a Court may find the deceased failed to make “adequate provision”.

This article is not legal advice and should not be used as a substitute for that. Should you require assistance with a Family Provision Claim, please don’t hesitate to contact the team at Jenkins Legal on (02) 4929 2000.