Certain classes of people are eligible to make a claim against a deceased's estate under the Succession Act 2006 (NSW) if they feel they have not received adequate provision in that person's will or from the intestacy laws where a person dies without a will.

We have experience in acting for estates in defending claims and also in acting for claimants to ensure they receive a proper provision from an estate. Claims under the Act must be made within 12 months of the death of the deceased. They may only in certain circumstances be brought out of time.

In order to make a claim for a family provision order, a claimant must first be eligible. There are several categories of eligible persons:

• the spouse 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.

A Court will 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.

There is effectively a 2 stage process applied when determining a claim once eligibility is confirmed. In the first stage, the Court will is determine whether the provision (if any) made for the applicant in the deceased person’s will or by the operation of the intestacy rules where there is no will is inadequate for his or her proper maintenance, education or advancement in life. The second stage, which arises only if the determination is made that the provision made for the applicant is inadequate, requires the Court to determine what provision ought to be made considering the applicant’s needs and resources.

Many claims settle well before a hearing date however, there are options available to seek to avoid a or minimising successful claims, including:

• Having joint assets such that on a joint owner’s death the asset passes to the remaining joint owner by the right of survivorship and does not form part of the estate;
• Having assets held in superannuation funds and having valid and binding nominations in place;
• Disposing of or encumbering assets prior to your death (loan agreements and security arrangements may be utilised in this regard however consideration must be given to not falling foul of the Prescribed Transaction provisions of the Act);
• Having Statements of Testamentary Intention signed with your will or will incorporating testamentary trusts to be used in evidence to explain why you have distributed your estate as you have;
• Entering into Deeds of Family Arrangement with possible eligible persons including releases of rights under the Act; and
• Having Court Orders made by consent disposing of the right to make such claims.

Contact us

We practice extensively in the area of claims under the Succession Act (formerly the Family Provision Act) and the defence of such claims.

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.