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9 December 2015 Where there's a will there's a relative! Claims against deceased estates

By Angela Harvey, Partner and Elizabeth Santifort, Solicitor

In Brief

This year marks the 100th anniversary of the commencement of family provision legislation in New South Wales.  Despite this, we are continuously surprised by the number of people who come to see us about their estate planning needs and who are not aware that their will may be challenged in court.  With people living longer and accumulating more wealth, claims on deceased estates are becoming increasingly common.  

In this article, we discuss the nature of family provision claims and the measures you can take to help protect your estate from one.


What is a family provision claim?

A family provision claim is a claim for provision (or additional provision) from an estate of a deceased person where 1) that person left the applicant with inadequate provision in their will or 2) where the person died without a will (on intestacy). Claims of this nature are governed by Part 3.2 of the Succession Act 2006 (NSW) (Act). 

Can anyone make a claim on my estate?

No, only certain categories of people (known in the Act as 'eligible persons') are able to make a family provision claim.  Eligible people are as follows:

  1. the spouse of the deceased at the date of death;

  2. a person living in a de facto relationship with the deceased at the date of death;

  3. children of the deceased (including adopted and ex-nuptial children);

  4. former spouses of the deceased;

  5. a person who was at any particular time, wholly or partly dependent upon the deceased and who was

    1. either a grandchild of the deceased; or

    2. at that particular time or any other time, a member of a household of which the deceased was a member; and

  6. a person who was living in a close personal relationship with the deceased at the time of death.

When will the Court make a family provision order?

The Court is permitted, under Section 59 of the Act, to make an order for provision for an applicant where, in the Court's opinion, adequate provision for the "proper maintenance, education or advancement in life" of the applicant has not been made by the will of the deceased or by the operation of the laws of intestacy. 

Some of the matters that the Court may take into account in determining whether a family provision order should be made include:

  1. any family or other relationship between the applicant and the deceased person;

  2. the nature and extent of the deceased person’s estate;

  3. the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate;

  4. any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person;

  5. any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate; and

  6. the character and conduct of the applicant before and after the date of the death of the deceased person.

Ultimately, an order for provision is in the Court's absolute discretion, taking into account all of the circumstances of the individual case.

Can I prevent someone making a claim on my estate?

Yes, there is provision in the Act for a person (Testator) during his or her lifetime, to make an application to the Court for a Section 95 release.  This is a court order that approves the release of an eligible person's right to make a future application for provision from the Testator's deceased estate.  

As with most legal proceedings, an application for a Section 95 release can be a costly exercise to undertake. We advise that you speak to a lawyer to discuss whether this is an appropriate course of action for you. 

Is there anything else I can do to help protect my estate from a claim?

A properly drafted will can go a long way to bolstering your estate from a family provision claim.  We recommend consulting an experienced estate planning lawyer to assist you in this regard. 

For further information, please contact:

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email: axh@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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