Only people who are “eligible” are able to apply for a family provision order under the Succession Act 2006 (NSW).

The definition of an eligible person is contained within section 57 of the Act. The persons eligible are:

• the wife or husband of the deceased at the date of death;
• a person living in a de facto relationship with the deceased at the date of death;
• children of the deceased (including adopted and ex-nuptial children);
• former spouses of the deceased;
• a person who was at any particular time, wholly or partly dependant upon the deceased and who was
• either a grandchild of the deceased; or
• at that particular time or any other time, a member of a household of which the deceased was a member
• a person who was living in a close personal relationship with the deceased at the time of death.

The existence of a property settlement under the Family Law Act 1975 (Cth.) may hinder an applicant from successfully bringing a claim the Act however, even if there has been a family law property settlement, if the applicant can show a material change in circumstances, the claim may succeed.

A Court may not make an order for provision in favour of an eligible person unless it is satisfied that the person in whose favour the order is to be made is an eligible person and, at the time the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

Once eligibility is established and any provision (including a lack of any provision at all) made for an applicant is found to be inadequate, a court, when making an order for a provision will determine what would in the circumstances be an adequate provision considering the applicant’s needs and resources.

Contact us

We have years of experience in advising claimants on their prospects and advising executors in relation to defending and settling claims for provision.

For free initial telephone advice in relation to dealing with a claim or threatened claim for a provision from a deceased estate or the administration of a deceased person’s estate, please call one of our Estate and Estate Litigation Lawyers on (02) 9525 8688.