Family Provision - Know Your Rights

A family provision claim is where an eligible individual believes they are entitled to a share or a larger share of a deceased person’s estate. In NSW, the application to the Supreme Court of NSW must be filed within 12 months of the deceased's date of death.

The Succession Amendment (Family Provision) Act 2008 (NSW) was introduced as part of the Uniform Succession Laws Project, aiming to consolidate succession law across Australia.

In NSW particularly, individuals who are

• A former spouse of the deceased

• At any particular time, dependent on the deceased person, was a grandchild or a member of the same household

• At the deceased's time of death, living in a close personal relationship

Must now establish ‘factors which warrant the making of the application’ when the court determines whether a family provision order may be made.

Factors which warrant the making of the application

• Generally, it is factors which, when added to facts which make the applicant an eligible person, give the person a status of who would generally be regarded as a natural object of testamentary recognition by the deceased

  • In other words, the person was an individual whom the deceased ought to have considered when making testamentary dispositions

• Note this is an additional hurdle above being eligible

Notably, there was an expansion, making ‘close personal relationship’ a distinct category. This incorporates relationships outside marriage or a de facto relationship between two adult persons. The two individuals at the time of the deceased's death must be

• Living together

• Do not have to be related by family

• One provides the other with domestic support and personal care

  • Note the support cannot be paid

If you wish to know more about family provision claims, Verde Lawyers is happy to assist you.

Contact us today at Verde Lawyers at info@verdelawyers.com or 02 9283 5290.