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Is family provision mandatory in NSW?

Most people want to leave a financial legacy to their family. Passing on property, savings and other assets to your loved ones can help them prepare for the future and build a nest egg for their own spouses and children.

But is providing for your family in the event of your death mandatory in NSW? What if you have a strained relationship with your children? Perhaps you are separated from your partner?

Let’s answer these questions by examining succession laws in the state.

Do I have to leave assets to my loved ones?  

The simple answer is no. Drafting a will enables you to select which beneficiaries receive assets from your estate – and you can choose to leave out whomever you like.

However, eligible people can pursue a family provision claim to contest the will if they believe they have not received adequate financial support from a loved one. This includes spouses, de-facto partners and children.

The courts generally expect individuals to have a moral obligation to the dependants in their life. Therefore, you typically need solid grounds to leave spouses or children out of your estate and should outline these reasons clearly in the will.

Even then, family provision claims have a high rate of success. Approximately three-quarters of cases are ruled in favour of the plaintiff, according to research from the University of Queensland and other academic institutions.

What will judges consider in a claim?

The courts will examine whether you’ve left adequate provision for a loved one if they decide to pursue a claim.

A judge will explore a range of factors in accordance with Section 60 of the Succession Act 2006, such as:

  • The claimant’s relationship with the deceased, including its nature and duration;
  • The extent of any obligations the deceased owed to the applicant;
  • The claimant’s present and future financial needs;
  • The size of the deceased’s estate;
  • The claimant’s conduct towards the deceased before and after their death;
  • Whether the applicant was reliant on the deceased in any way during the latter’s life;
  • Any physical or mental disabilities the claimant may have; and
  • Prior evidence of the deceased’s testamentary intentions.

As we can see, the final wishes of the will maker are just one factor judges consider when deciding whether or not a loved one has received adequate provision from an estate.

Would you like to discuss contesting a will? Please contact Gerard Malouf & Partners Will Dispute Lawyers.

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Contesting Wills
 — Gerard Malouf & Partners

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