Who can make family provision claims?

Published 02 Apr 2014

Family provision claims are an important option for those who believe they have not been sufficiently cared for in the will of a family member or person they were reliant on.

However, when making the decision to contest a will, it is crucial to understand your official rights, including the eligibility to make claim.

Who can make family provision claims?

While the deceased had the right to leave their assets to anyone they wished, some circumstances allow friends or relatives to contest the allocation of the estate.

In the event that the deceased has left their assets to third parties, such as friends, charities or someone outside of the immediate family, certain individuals may be able to contest the will. Additionally, if the estate has been divided unequally or unfairly among family members, dependents could make inheritance disputes.

The Family Provisions Act 1982 (NSW) outlines the persons eligible for contesting the will. Claimants can include the spouse, de-facto partner and life partner of the deceased.

Direct decedents of the individual, and other children from domestic relationships with the deceased, may contest a will. Former spouses are also named as eligible claimants.

The persons eligible for an inheritance dispute are not restricted to family members and ex-partners. The Family Provisions Act also gives disputing rights to any individual who was, at any particular time, wholly or partly dependent upon the deceased party.

Additionally, any adult person who was in a close personal relationship with the descendent is eligible. This includes any individual who was living with the deceased and relied on this person for domestic support and personal care.

What circumstances affect claimant eligibility?

In order to make a family provision claim, you must qualify in one of the above categories. Once you have established your eligibility, you then must prove to the Court that there is some reason or need to warrant a change to the will.

These changes are typically for financial benefit only. This is because a family provision claim should be made only when it is established that due to your financial situation, the deceased should have provided you with a legacy to lessen your struggle in life.

If there is a moral obligation for the deceased to provide for your education, maintenance and advancement in life, you will be able to appeal for the Court to review your situation and, if needed, alter the will in question.

For more information on family provisions claims, get in touch with a contesting wills lawyer today.

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