- Purpose: To ensure “fairer” outcomes when a loved one hasn’t adequately provided for you.
- Strict Deadline: You generally have only 12 months from the date of death to act.
- Resolution: Most claims settle through mediation rather than a long court battle.
When someone passes away, questions about inheritance naturally arise. In cases where someone has not been adequately provided for following the death of a loved one, Family Provision Claims help make the situation fairer. This article discusses some of the most pressing questions people may have about Family Provision Claims in New South Wales. The information is general only and we recommend obtaining legal advice tailored to your circumstances.
1. Am I Eligible to Make a Family Provision Claim?
To make a Family Provision Claim in NSW, you must fall within the category of “eligible persons” as defined by the Succession Act 2006. The three main categories of eligible people include:
- Spouses (including former spouses).
- People in a de facto relationship with the deceased (including same-sex couples).
- A child of the deceased (including adopted children).
An additional category exists for people in specific circumstances who do not fit the above categories but were wholly or partly dependent on the deceased. This might include, for example, a stepchild or grandchild, or someone who lived in the same household and relied on the deceased for financial support. To determine your eligibility, seek legal advice from a qualified professional.
2. Are There Time Limits to Make a Family Provision Claim?
NSW imposes strict time limits for lodging a Family Provision Claim. Eligible persons generally have 12 months from the date of the deceased person’s death to start court proceedings. Acting promptly and seeking legal guidance ensures compliance with statutory deadlines. Courts may grant extensions for late applications in exceptional circumstances, such as when a claimant was not notified that the deceased had passed away.
3. Can I Make a Family Provision Claim if There is No Will?
Family Provision Claims often arise when someone disagrees with the terms of a Will. If a deceased person does not leave a valid Will, intestacy laws govern asset distribution. Typically, the same people who would be eligible to make a Family Provision Claim benefit from the estate under these laws, including spouses, de facto partners, and children.
Sometimes, a person must make a Family Provision Claim on an intestate estate. For example, a grandchild financially supported by their grandparent might not inherit under intestacy laws. In such cases, a dependent person may claim support and could be considered equally or more deserving than other potential beneficiaries, such as the deceased’s children.
4. Will I Have to Go to Court for a Family Provision Claim?
Most Family Provision Claims settle through mediation or negotiation outside court. The executor of the estate has the authority to reach agreements on Family Provision Claims.
Alternative dispute resolution methods like mediation provide a more efficient and cost-effective way to resolve disputes. Informal negotiations allow parties to reach mutually agreeable outcomes without lengthy litigation. However, if negotiations fail, court proceedings may be necessary. Courts are often complex, expensive, and time-consuming, so parties usually strive to avoid them.
5. What Does a Court Consider When Determining a Family Provision Claim?
The court considers various factors outlined in the Succession Act 2006 when deciding Family Provision Claims. Key factors include:
- The claimant’s financial needs and resources.
- The relationship with the deceased.
- The competing interests of other beneficiaries.
- Contributions made by the claimant to the deceased’s welfare.
- The size and nature of the estate.
6. How Much Will It Cost to Make a Family Provision Claim?
The cost of pursuing a Family Provision Claim varies depending on case complexity, legal fees, and court filing fees. In NSW, legal costs may be covered by the deceased estate. Discuss fees and cost estimates with your legal representative upfront to avoid surprises.
7. How Long Will a Family Provision Claim Take?
Many people worry that a Family Provision Claim will take years to resolve. This can happen, especially if the case goes to court. However, most parties aim to resolve claims promptly. Some claims resolve completely within a few months. Seeking early advice from an experienced estate lawyer usually ensures the best possible outcome.
Taking the Next Step with Somerville Laundry Lomax
If you or someone you know wants more information or needs help with a Family Provision Claim, our team has over 130 years of experience serving the Northern Rivers. We offer a free first consultation at our offices in Lismore, Ballina, Byron Bay, and Kyogle to help you understand your rights.
Contact us today:
Call 02 6621 2481 or email [email protected].
Disclaimer: This is general information only. You should obtain professional advice relevant to your circumstances.