How can I make a family provision claim?

Published 07 Feb 2017

Find out what a family provision claim is and what the process is for making this kind of claim.

What is a family provision claim?

It is an application by an eligible person for a provision out of the estate of a deceased person. An eligible person includes all of the following people in relation to the deceased:

  • A child (including adopted children)
  • A grandchild
  • A wife or husband of the deceased
  • A person with whom they were in a de facto relationship
  • A former wife or husband
  • Someone who was wholly or partly dependant at one time
  • Someone who was a member of the same household
  • A person with whom the deceased was in a close personal relationship with at the time of the death

According to LawAccess NSW, you would make this application because you:

  • Are not in the will
  • Did not receive what you think you are entitled to receive

The process of making a family provision claim

First of all, take note that it is not necessary to receive a grant of Probate or a grant of Letters of Administration before making a family provision claim.

Secondly, know that an application under the act needs to be made within 12 months of the death.

Either one executor or both of them can apply to the Court for an opinion on either the interpretation of the Will or the administration of the estate, the Law Society of NSW explained. Take note, however, that if an executor acts on the opinion of the court, they will have officially discharged his or her responsibility as an executor as long as there was no fraud, willful concealment or misrepresentation involved.

Before any hearing, a mediation will be required to assess if there are special circumstances involving a risk of violence in the case.

Then, the court will analyse the case to determine:

  • An eligible person's maintenance, education and advancement in life (at the time of the hearing, not at the death)
  • The character and conduct of the eligible person before and after the death
  • The addition to the deceased's property and welfare by the eligible person
  • Any other matters the court deems relevant

If you'd like to lodge a family provision claim, specifically, reach out to Gerard Malouf & Partner's specialised contesting a will lawyers.

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