I’ve been left out of the Will – what do I do now?
Everything you need to know about making a family provision claim in NSW.
Everyone has the testamentary freedom to decide how and to who to leave their estate to upon their death. However, where a person dies and leaves a family member out of their Will or leaves them a smaller portion of the estate, that family member may contest the Will and seek a family provision order from the Supreme Court of NSW. Read on to find out what to do if you have been left out of a Will.
What is a family provision order?
A family provision order is where a person who has been left out of the Will or feels they have been inadequately provided for, seeks a portion of the deceased’s estate to be provided to them by the Court. Family provision claims are governed by the Succession Act 2006 (NSW) (“Succession Act”) in New South Wales. Other Australian states have similar provisions.
A family provision order is not guaranteed as this is at the discretion of the Court. To make a claim, a person must be an eligible person under section 57 of the Succession Act and must show the Court that adequate provision for the proper maintenance, education or advancement in life of the person has not been made by the Will of the deceased person.
Eligible Persons
Under section 57 of the Succession Act, an eligible person is any of the following persons:
- the spouse of the deceased at the time of the deceased’s death;
- a person living in a de facto relationship with the deceased at the time of the deceased’s death;
- a child of the deceased;
- a former spouse of the deceased;
- a person who was, at any particular time, wholly or partly dependent on the deceased, and who is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household of which the deceased was a member; or
- a person living in a close personal relationship with the deceased at the time of the deceased’s death.
Time Limits
An application for a family provision order must be made within 12 months of the date of death of the deceased. An extension of time may be granted in circumstances where all interested parties consent or the Court is satisfied the person making a claim has shown cause as to why there is a delay.
Considerations
The Court may consider any number of factors when making a decision and weighing up whether or not to grant a family provision order. Some of these considerations may be:
- any family or other relationship between the applicant and deceased including nature and duration of relationship;
- extent of any obligations or responsibilities owed; and
- nature and extent of the deceased’s estate.
It is important to note that the Court has wide discretion and there is no one-size-fits-all approach. Each case is different taking into consideration the unique circumstances of each family and its dynamics. If you have been left out of a Will or have been inadequately provided for, contact the team at Streeterlaw now on (02) 8197 0105 to discuss your eligibility to make a family provision claim.
