3 key factors the courts consider in family provision claims

Published 04 May 2016

Following the death of a loved one, you may feel that you’ve not received adequate provisions for your needs from their will. This can be particularly troubling if you were close to the deceased and have dependents that need your care and support.

There are many reasons why someone may decide to leave people out of their will, but you should contact an experienced contesting wills lawyer if you believe you have a legitimate grievance over the distribution of an estate.

While most cases are settled before they reach the courts, inheritance disputes may end up in front of a judge, who must then make a decision on whether or not your claim should be successful. His or her ruling will take a number of factors into account, so here are some of the issues that could affect your family provision claim.

1. Your eligibility

Not everyone can file a family provision claim; you must be an eligible person according to the NSW Succession Act 2006. The legislation states that spouses, de-factor partners, children, former spouses and dependents are among those who can claim. For a full list of eligible people, you may want to book a free consultation with an expert lawyer for more information.

2. Your relationship with the deceased

One of the reasons why people leave friends and relatives out of their will is because the relationship has become strained. An estrangement does not prevent you from making family provision claims, but the judge will examine the reasons for the breakdown in your relationship, and this could affect the amount you’re awarded.

3. Your financial health and needs

You may be entitled to a larger share of the deceased’s estate if you have a greater financial need than other beneficiaries. For example, if you’re in poor health and have retired with few assets, you’re more likely to receive a larger proportion of the estate than someone who is employed and financially solvent.

These factors may or may not be important in your case, and there are many other issues that could impact on the judge’s decision, such as the size of the estate, your age and any provisions you may have already received.

To discuss your claim in more detail, please don’t hesitate to contact a contesting wills lawyer who can educate you on the relevant legislation and guide you through the necessary steps of launching a claim.

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