When someone passes away, questions about inheritance naturally arise. In cases where someone has not been adequately provided for following the death of a loved one, Family Provision Claims exist to help make the situation fairer. This article discusses some of the most pressing questions people may have about Family Provision Claims in New South Wales. The information is general only and we recommend obtaining legal advice tailored to your circumstances.
- Am I Eligible to Make a Family Provision Claim?
To make a Family Provision Claim in NSW, you must fall within the category of “eligible persons” as defined by the Succession Act 2006. The three main categories of people who are eligible includes spouses (including a former spouse), people who were living in a de facto relationship with the deceased (including same-sex couples), and a child of the deceased (including an adopted child).
An additional category exists to make provision for people in specific circumstances who do not fall into the categories above but have been wholly or partly dependent upon the deceased. This might include, for instance, a stepchild or grandchild of the deceased, or someone who lived in the same household and relied on the deceased for financial support. To determine your eligibility to make a Family Provision Claim we suggest seeking legal advice from a qualified professional.
- Are There Time Limits to Make a Family Provision Claim?
There are strict time limits for lodging a Family Provision Claim in NSW. Generally, eligible persons have 12 months from the date of the deceased person’s death to commence court proceedings. As such, it is crucial to act promptly and seek legal guidance to ensure compliance with the statutory deadlines. Extensions may be granted for late applications in exceptional circumstances, such as if the person making the claim was not notified that the deceased had passed away.
- Can I Make a Family Provision Claim if There is No Will?
Family Provision Claims most often arise when someone does not agree with the terms of a Will. In cases where a deceased does not leave a valid Will, intestacy laws govern the distribution of assets. Under these laws, the people who benefit from a deceased estate are typically the same people who would be eligible to make a Family Provision Claim – that is, spouses, de facto partners, and children.
However, a person may still need to make a Family Provision Claim on an intestate estate. For instance, a grandchild may have been financially supported by their grandparent throughout their life, yet they would not normally inherit under intestacy laws. A dependent person in this position may be able to make a Family Provision Claim against the intestate estate, and they may be found to be equally, or more, deserving of support compared to other potential recipients such as the children of the deceased.
- Will I Have to Go to Court for a Family Provision Claim?
Most Family Provision Claims are settled through mediation or negotiation outside the courtroom. The executor in charge of the deceased estate has the authority to reach agreements in relation to Family Provision Claims against an estate.
Alternative dispute resolution methods such as mediation typically offer a far more efficient and cost-effective means of resolving disputes than going to court. Informal negotiations usually allow parties to reach mutually agreeable outcomes without the need for protracted litigation. However, if a resolution cannot be reached through negotiation, court proceedings may be necessary to adjudicate the matter. Court proceedings are often complex, expensive, and protracted, so in most cases, all parties will strive to avoid this outcome.
- What Does a Court Consider When Determining a Family Provision Claim?
When deciding Family Provision Claims, the court considers a range of factors outlined in the Succession Act 2006. The most significant factors are usually the financial needs and resources of the claimant, the relationship between the claimant and the deceased, and the competing interests of other beneficiaries.
There are other factors that will be considered when they are relevant to the case, such as any contributions made by the claimant to the deceased’s welfare, and the size and nature of the deceased’s estate. The court’s primary objective is to achieve a fair and equitable distribution of the estate that takes into account the needs and entitlements of all relevant parties.
- How Much Will It Cost to Make a Family Provision Claim?
The cost of pursuing a Family Provision Claim will vary depending on the complexity of the case, legal fees, court filing fees, and other associated expenses. In NSW, legal costs for Family Provision Claims may be paid for out of the deceased estate.
However, it is important to know that the courts have the discretion to make orders regarding costs based on the outcome of the case and the conduct of the parties. It is advisable to discuss fees and cost estimates with your legal representative upfront to avoid any surprises down the line.
- How Long Will a Family Provision Claim Take?
Individuals are often worried that making a Family Provision Claim will take years to resolve. Of course, this can sometimes be the case, especially in cases that end up in court. However, in most cases, everyone involved is motivated to resolve the case in a timely fashion. Some Family Provision Claims are completely resolved in a few months.
Seeking professional advice early from an experienced estate lawyer will usually ensure the best possible outcome for all parties involved.
If you or someone you know wants more information or needs help or advice, please contact us on 02 9792 8413 or email [email protected].