Family Provision Claim
Legal Support When You Feel You’re Unfairly Treated in a Will
Making a Family Provision Claim in NSW
Just like life, a Will can sometimes feel really unfair.
When you lose a loved one, you’re understandably heartbroken, confused, and upset. But if you then discover that the wishes outlined in their Will don’t provide for you as expected … your distress and hurt can be even harder to both bear and accept.
Family Provision Claims can correct this perceived wrong.
Of course, they cannot bring back your loved one. But, they can restore fairness, ensuring you get the suitable financial assistance you need to live your life. At Falzon Legal, we give compassionate and professional guidance … helping you to understand your Will dispute options and get the provision to which you’re entitled.
What Is a Family Provision Claim?
When you feel that you have been insufficiently provided for in a Will, you could be entitled to make a Family Provision Claim. Under the Succession Act 2006 NSW (formerly the Family Provision Act NSW 1982), this legal procedure allows specific people to apply for fair financial support … based on their circumstances and needs.
Family Provision isn’t about challenging the legality of the Will itself. Instead, it tries to rectify perceived wrongs … where the deceased forgot or failed to fulfil their moral obligation to provide for the people who depended on them while they were alive.
It requires an application to the Supreme Court of NSW … or sometimes, the District Court … where
you ask for more from the recently passed’s estate. You can make this request whether you received nothing from the Will, or when you did receive an inheritance, but believe it to be too small.
That said, the rules about who can claim and for what reason are strict. You must be considered an eligible person, and the claim must be for ‘proper maintenance, education, or advancement in life’. Therefore, you can’t ask for money if you just fancy a new car or a holiday abroad … it must be for genuine need.
Who Can Make a Family Provision Claim?
Making a Family Provision Claim isn’t something that’s open to everybody. As outlined in Section 57 of the Succession Act, only specific people have this right … known as eligible persons.
When the deceased passed away, you must have been one of the following:
- The deceased’s spouse or de facto partner.
- Former spouse of the deceased – in particular circumstances.
- Children of the deceased – which may include adopted, step, biological, and adult children.
- Whole or partial financial dependents – a person who was a grandchild or someone living in the deceased’s home.
- A person who lived with the deceased and was providing care for no payment.
- Other people who had an established financial reliance or moral claim on the deceased’s estate.
Showing that you’re entitled to make a claim is your very first step in contesting a Will in NSW for Family Provision. Falzon Legal will provide you with guidance on your eligibility status, always with consideration and understanding.
Unsure if You’re Eligible To Make a Family Provision Claim?
Family Provision Claim Time Limits in NSW
When you’re coming to terms with the passing of a loved one, meeting statutory claim windows isn’t at the forefront of your mind. But, if you feel you’ve been insufficiently provided for in a Will, you must accept there’s a short timeframe in which to act… and Falzon Legal will compassionately help you through it.
In NSW, you must lodge your contest within 12 months from the date of the deceased’s passing. The Supreme Court is very strict … only in the most exceptional of circumstances will they even consider giving an extension. If the estate has already been distributed, your chances of success are virtually zero.
And, if you do miss the 12-month timeframe, then you will most likely lose your rights to make a claim. Therefore, speak to Falzon Legal as soon as possible. We know it’s an emotionally heartwrenching time, but the sooner you get in touch with an understanding lawyer … the quicker you will find peace, justice, and fairness.
The Grounds for a Family Provision Application in NSW
Understandably, a Will has significant power in law … it does, after all, represent the genuine wishes of the recently passed. Therefore, courts only want to intervene if it can be completely satisfied that you didn’t receive proper provision. Just being omitted from a Will isn’t enough for the court to take action.
For your claim to succeed, you need to show the court:
- Inadequate provision – the Will (or intestacy rules if a Will doesn’t exist) fails to give you enough support for your education, maintenance, or advancement in life, when looked at from the angle of your relationship to the deceased.
- Your personal circumstances mean you need help – the court can look at many things, such as:
- Your finances.
- Your present and future requirements.
- The size of the estate.
- Claims from other beneficiaries.
- Your relationship to the deceased.
- Support previously given to you by the deceased.
- An eligible relationship link exists – the court will examine your relationship with the deceased, including:
- It’s nature.
- How long it lasted.
- Any financial or non-financial support you gave to the estate or the deceased.
- Moral obligations the deceased had to you, for example, a duty of care.
Bear in mind, it’s not the job of the court to rewrite the Will or ignore the deceased’s wishes. What’s more, while it may decide to make a ‘fair’ provision as the result of a claim … this doesn’t mean an equal share. It simply means you are entitled to what you need to get adequate provision for your circumstances.
Wondering if You Can Make a Claim?
The Family Provision Claim Process
While all circumstances are different, generally, the steps are as follows:
1. Free Initial Advice and Consultation
We start with an understanding and comforting chat. After talking about why you believe you have been insufficiently provided for, Falzon Legal will look at your eligibility, and explain the likelihood of a successful claim.
2. Carefully Collect Documentation
Working with you, we collate all necessary information … such as financial records, time-related evidence of your relationship to the deceased, reasons you’re making the claim, and an affidavit that states your needs.
3. Filing the Claim
Once we have all the information, we will then file the Family Provision Claim in the NSW Supreme Court together with all required supporting evidence. As long as you have approached us in time, we will do this within the 12-month time limit required in NSW.
4. Negotiation and Mediation
The court strongly encourages Family Provision mediation in NSW … allowing you and other parties to come to an agreement without the stress, cost, and worry of a court hearing. Falzon Legal will compassionately guide you through this.
5. Court Hearing
If mediation and negotiation cannot solve the matter, it will then go to a court hearing. Falzon Legal will prepare your case, act on your behalf in court, and explain your claim clearly to the judge … fighting for a fair outcome for you.
6. Who Pays for the Legal Costs?
If you are successful, whether in mediation or negotiations, you will receive a part of the deceased estate. 90 % of claims settle at mediation stage. However, if the claim proceeds to court, a judge will make a decision on the amount you receive and who pays for the cost of the case.
Ready To Talk? We’ll Answer Your Questions and Talk Things Through
Defending a Family Provision Claim in NSW
It may be that you’re not the one making the claim … instead, you’re the one facing it. In the same understanding and considerate way we guide eligible persons through the claim process, we also provide the same compassion to Executors and beneficiaries who need to protect the estate from a claim.
If you’re the Executor, it’s your job to defend the Will and ensure the deceased’s intentions are followed. Alternatively, if you’re a beneficiary, your inheritance could be at risk, so you must ensure the estate is powerfully defended.
When Defending Family Provision Claim NSW Cases, You Need To:
- Act responsibly:
- Executors – you must act appropriately, follow the Testator’s wishes, but also be open to compromise and negotiation where there is legal merit.
- Beneficiaries – be willing to accept a settlement that works to defend some of their inheritance, instead of losing it all in court.
- Collect information:
- Executors – it’s your duty to find and provide the court with evidence, such as the deceased’s intentions, the estate’s size, and the financial circumstances of all the beneficiaries.
- Beneficiaries – you should provide information to the Executor that demonstrates your relationship with the deceased and your own financial needs.
- Take part in mediation:
- Executors and beneficiaries – all parties should take part in the negotiation to try and find an agreeable settlement.
Falzon Legal thoughtfully and respectfully protects the interests of both Executors and beneficiaries in the event of a Family Provision claim. If you’re in this position, call us immediately, and we can advise you promptly on your next step.
The Realities of Family Provision Claims
At Falzon Legal, we know that behind every single Family Provision claim is an upset and grieving individual. Although the legal route is there to bring fairness, it can still take its toll on you. That’s why we are there at every step … not just providing unparalleled advice, but also delivering compassion and understanding.
Here are some of the practicalities to think about when considering a Family Provision Claim:
Financial Costs of a Claim
Usually, costs are paid from the estate itself … and that applies to both the costs of the claimant and the defendant. That said, if the court believes that a Family Provision Claim is vexatious or frivolous, the claimant may have to pay their own costs … and sometimes, those of the defending party.
Emotional Toll
Since claims have to be made within 12 months of the deceased’s passing, the whole process occurs during a time of intense heartache and grief. Falzon Legal, expert Will dispute lawyer, works ceaselessly to achieve resolutions with compassion and minimal conflict.
Settlement Chances
In most circumstances, Family Provision Claims are resolved out of court. At Falzon Legal, it’s our mission to pursue a fair, prompt, and affordable solution while providing you with the support you need.
Time Commitment
Despite the requirement to be started inside 12 months of the passing, Family Provision Claims aren’t always over quickly. The matter can often take months to sort out through mediation, and can take longer if it goes to court. Falzon Legal will do everything to ensure efficiency and a timely conclusion.
Relationships Impacts
Sadly, disputes over inheritances bring conflicts and arguments to families, which may never be solved completely. That’s why Falzon Legal brings sensitivity and understanding to every claim … ensuring, wherever possible, to safeguard relationships.
Falzon Legal – Bringing Care and Compassion to Family Provision Claims
Falzon Legal understands your pain, and is here to guide you thoughtfully and patiently through the Family Provision Claim process.
Seeking a fair provision and justice for you, we are by your side. Backed by professionalism and experience, but focusing on empathy and understanding, we’ll help you make the right decision … for you, your family, and your future.
We can’t take away the pain of loss, but we can ease the strain.
Family Provision Claim FAQs
What Is the Family Provision Claim Success Rate?
At Falzon Legal, our success rate is 100%!
Each case is unique and has to be judged on its own merits. Reassuringly, most claims are settled out of court through mediation or negotiation. That said, a Family Provision Claim is more likely to be successful when prepared by a legal professional.
At Falzon Legal, we carefully look at your circumstances and eligibility before starting any claim. If we feel that you have a valid case, we work with you with honesty and empathy to find an agreeable resolution.
Who Pays the Family Provision Claim Costs?
Typically, the legal costs for both of the parties are paid from the deceased’s estate. But, should the judge think that the claim is unreasonable or being made just to cause trouble, the court may say the claimant must pay their own expenses.
Can Grandchildren Make a Claim?
They can, but only in specific circumstances. Grandchildren need to prove that they were previously dependent on the deceased … whether wholly or partially … and that they had a close relationship with them.
Does Making a Claim Mean Going to Court?
Not necessarily. Typically, an eligible person’s Will dispute in NSW is resolved before the courts get involved … usually through negotiation or mediation. Not only does this keep family conflicts to a minimum, but it also means a quicker and more affordable solution.
What Happens if the Estate Is Small?
When there are inheritance disputes or Family Provision Claims and the estate is quite modest, courts are generally reluctant to change how the estate is distributed from the original Will.
Can I Make a Family Provision Claim if There’s No Will?
Yes! If the deceased passed on without making a Will, they died intestate. This means that their estate is distributed in line with the laws of intestacy, which usually means the lion’s share goes to the next of kin.
But, if you’re an eligible person and feel you haven’t been sufficiently provided for, you can still pursue a Family Provision Claim.
Can an Executor Make a Family Provision Claim?
Yes! If an Executor is classed as an eligible person, they are entitled to make a claim if they feel they have been inadequately provided for. That said, as this presents a conflict of interests, they must give up their Executor position. Basically, they can’t dispute the Will, while also defending it.
Who Inherits if a Beneficiary Dies?
In short, it depends on when the beneficiary passed on.
If the beneficiary dies before the Will-maker, the gift fails (legally known as lapsing). That said, in NSW there is an anti-lapse provision, which means that the inheritance may go to the beneficiary’s child, unless the Will says otherwise.
But, if the beneficiary died after the Will-maker … but before they obtained their inheritance … it becomes part of the beneficiary’s estate. It’s then distributed in line with the beneficiary’s Will.