Family provision claims NSW is an important part of the process of contesting a Will. These claims are an important aspect of estate law in NSW, Australia. Family provision claims NSW aim to provide adequate financial support to individuals who believe they have not been adequately provided for in a deceased person’s Will.
In this article, we will explore the key aspects of family provision claims in NSW. Additionally, we will shed light on how they help protect the rights of dependants.
What are Family Provision Claims in NSW?
Family provision claims are legal actions that eligible persons launch. Through this, they seek a share or a larger share of a deceased person’s estate. Under the Succession Act 2006 (NSW), eligible persons include:
- spouses or de facto partners of the deceased (or former spouse or partner from de facto relationship)
- children of the deceased person
- a person with whom the deceased was living in a close personal relationship,
- a grandchild of the deceased who was dependent on the deceased,
- other dependants of the deceased including members of the household of the deceased person
The primary objective of these claims is to ensure that eligible persons receive a fair and reasonable provision from the estate.
Grounds for Family Provision Claims
How to succeed in a family provision claim? The claimant must demonstrate that they have not received adequate provision for their proper maintenance, education, or advancement in life. The court takes several factors into account when assessing the validity of a claim, including:
- Relationship with the Deceased: The court considers the nature and duration of the relationship between the claimant and the deceased. This includes assessing the closeness and dependency of the relationship.
- Financial Needs: The financial circumstances of the claimant, including their income, assets, and liabilities, are taken into consideration. The court evaluates the claimant’s present and future needs.
- Contributions: The court considers contributions that the claimant made to the deceased’s welfare. This includes financial, domestic, and caregiving contributions. This also includes non-financial contributions such as providing emotional support or assistance.
- Moral Obligations: The court examines any moral obligations the deceased had towards the claimant. This includes the claimant’s reasonable expectation of receiving provision from the deceased’s estate.
How to Make Family Provision Claims NSW?
Parties can make an application for family provisions claims by filing a Summons and an Affidavit in the Supreme Court of NSW. It is important first to obtain independent legal advice from a solicitor. Also note that there are filing fees for making such claims.
The Summons outlines what the claimant is seeking to receive from the deceased estate. Moreover, the Affidavit that supports your claim will list out the reasons why you are eligible to make such a claim, and any additional factors that the Judge must consider.
The Court’s Discretion
In family provision claims, the court has discretionary powers to make orders it deems just and equitable in the circumstances. The court carefully weighs the competing interests of all parties involved, including the beneficiaries named in the Will. It seeks to strike a balance between providing for the claimant’s needs and respecting the deceased’s testamentary wishes.
Time Limitations
It is crucial to note that one must file a family provision claim in NSW within 12 months from the date of the deceased’s death. Failing to meet this deadline may result in the claim being time-barred. However, the court has the power to grant an extension of time in certain circumstances, such as when there are valid reasons for delay.
As we have seen, family provision claims in NSW play a vital role in protecting the rights of dependants and ensuring adequate provision from a deceased person’s estate. These claims provide an avenue for eligible persons to seek financial support necessary for their maintenance and well-being.
By considering factors such as the claimant’s relationship with the deceased, financial needs, contributions, and moral obligations, the court strives to achieve a fair and equitable outcome for all parties involved.
If you find yourself in a situation where you believe you have faced unfair treatment in a Will, seeking legal advice is the first step towards asserting your rights through a family provision claim.
Case Study Example: Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111 (24 February 2017)
The case of Spata v Tumino involved a family provision claim in which the Court examined the moral obligations of a step-parent towards their step-children. The deceased, Mrs. Spata, had no biological children but had three step-children from her late husband. When her husband passed away, Mrs. Spata received a portion of his estate, while the remaining balance went to his three children.
In her own Will, Mrs. Spata left her entire estate to her niece and nephew, excluding her step-son, John. John, who had lived with Mrs. Spata and her husband for a period of time, filed a claim against her estate, asserting that he was a dependent member of her household and should have been provided for.
The Court determined that John, being an able-bodied adult step-child, did not demonstrate dependency on the deceased while living with her and his father. Although the deceased had reportedly performed household tasks for John, it was not claimed that he was reliant on her to carry out those tasks. Furthermore, the residences where John lived with the couple were actually owned by someone else, so he was not dependent on the deceased for housing.
Consequently, the Court concluded that John had not proven that he was wholly or partially dependent on Mrs. Spata at any point. However, the Court acknowledged a moral obligation for Mrs. Spata to have provided for her step-children, considering the promises she made to them during her lifetime and the provision she received from her late husband’s estate. Despite this, since John was not deemed an eligible person to make a claim, the Court dismissed his case, resulting in him receiving nothing from Mrs. Spata’s estate.
Obtaining Legal Advice from Estate Lawyers
Do you believe you have been unfairly excluded or inadequately provided for in a Will? It is essential to consult an experienced estate lawyer specialising in family provision claims.
They can assess the merits of your case. Furthermore, they can guide you through the legal process, and advocate for your rights in court. Legal advice is crucial to understanding your rights and the likelihood of a successful claim. If you wish to know about the legal costs for the same, reach out to our lawyers.
Our Wills & Estates team can provide you with all necessary assistance. We can file a claim against the deceased’s Will or estate. Contact us for more information.
