We are often asked about making claims on an estate. Clients making a Will often ask about the consequences of leaving a beneficiary out of a Will. Clients who believe they should have been included in the division from someone’s Will consult us about what they can do. Executors administering estates in which a family provision claim arises consult us. Here are some of the frequently asked questions:
No provision has been made for me in my mum’s Will, can I contest it? You can make an application (called a Family Provision Claim) to the Supreme Court for a share or a larger share from the estate of a deceased person. You can make a claim if you are an ‘eligible person’ who has been left out of a Will or did not receive what you thought you were entitled to receive.
Section 57 of the Succession Act 2006 (NSW) defines an ‘eligible person’. A family provision claim is an application to the Supreme Court of NSW to seek adequate provision from the estate of a deceased person. A person making such an application needs to show they are an ‘eligible person’ to make the claim, that they have financial need and that the deceased person ought to have made further provision for them in terms of their estate.
A judge will look at many factors in accordance with Section 60 of the Succession Act 2006 (NSW) including (but not limited to): the applicant’s relationship with the deceased, including its nature and duration, the extent of any obligations the deceased owed to the applicant, the applicant’s present and future financial needs, the size of the deceased’s estate, the applicants conduct towards the deceased before and after their death, whether the applicant was reliant on the deceased in any way when the deceased person was alive, any physical or mental disabilities the applicant may have, and prior evidence of the deceased’s testamentary intentions. How long do I have to make a claim? Under current NSW legislation, an application to the Supreme Court of NSW must be made within 12 months from the death.
The court has the power to extend that time limit in restricted circumstances.