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Family Provision Claims - Deceased Estates

A family provision claim under the Succession Act 2006 NSW is a legal mechanism that allows specific individuals to seek a share or a more significant portion of a deceased person's estate if they believe they have not been adequately provided for in the deceased's will or under intestacy laws. The purpose of the provision is to ensure that eligible family members or dependents are adequately provided for from the deceased's estate.


Some of the main elements of a family provision claim under the Succession Act 2006 NSW:

 

  1. Eligible claimants: The Succession Act 2006 NSW defines specific categories of individuals qualified to make a family provision claim. This qualification typically includes the deceased's spouse or de facto partner, children (including stepchildren and adopted children), and sometimes other dependents such as grandchildren or individuals financially dependent on the deceased.
     

  2. Time limit: There is a strict time limit within which a family provision claim must be lodged. In New South Wales, the claim must generally be made within 12 months from the deceased's death, although the court can allow claims outside this timeframe in certain circumstances.
     

  3. Grounds for claim: To succeed in a family provision claim, the claimant must demonstrate that they are not sufficiently provided for in the deceased's will or under intestacy laws. They must show that the deceased had a moral obligation to provide for their maintenance, education, advancement in life, or reasonable needs. The court will consider various factors, including the claimant's relationship with the deceased, financial circumstances, and other beneficiary competing interests.
     

  4. Court proceedings: Court proceedings are initiated if a family provision claim is made. The court will examine the claim's merits and consider all relevant evidence and arguments from the claimant, the executor or administrator of the estate, and any other interested parties. The court can vary the distribution of the deceased's estate to make provision for the claimant if it determines that the claim is justified.
     

  5. Factors considered: The court considers various factors when deciding a family provision claim. These may include the claimant's financial needs and resources, the estate's size, competing claims from other beneficiaries, any moral obligations the deceased owes, the claimant's conduct towards the deceased, and any other relevant circumstances.
     

  6. Potential outcomes: If the court favours the claimant, it may make various orders, including altering the distribution of the estate, providing for a lump sum payment, creating a trust, or transferring property. The court aims to provide for the reasonable maintenance, advancement, or support of the claimant, taking into account the deceased's intentions and the interests of other beneficiaries.
     

  7. Legal representation: Family provision claims can be complex, and claimants and other interested parties should seek legal representation to navigate the process effectively. Experienced lawyers can guide the eligibility requirements, help gather evidence, present arguments, and advocate for the best possible outcome.​

It is important to note that the specifics of family provision claims under the Succession Act 2006 NSW can vary depending on individual circumstances and the court's interpretation. Seeking legal advice from a qualified professional is crucial to successfully understanding and pursuing a family provision claim.

For further information,
please contact us to discuss your needs.

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