Discover how to work out if you’re eligible to make a family provision claim in New South Wales under the Succession Act 2006. This guide jumps straight into explaining the steps needed to kick off the claim, covering what papers are required, the timing, and what to expect with court proceedings. You’ll learn everything from checking your eligibility to smoothly sailing through the process. Dive into this fascinating journey and arm yourself with key information to tackle the claim with confidence. Understanding these crucial steps could save you heaps of time and hassle. Ready to get started?

Eligibility for Making a Family Provision Claim in NSW

Understanding who is eligible to make a family provision application in NSW is crucial before proceeding. The Succession Act 2006 (NSW) outlines specific categories of individuals who qualify to make a claim.

Eligible Persons Under the Succession Act 2006 (NSW)

The Succession Act 2006 (NSW) outlines the following eligible persons who can make a family provision claim:

• A spouse (or former spouse) of the deceased person at the time of their death.
• A de facto partner of the deceased at the time of their death (including same-sex couples).
• A child of the deceased (including an adopted child).
• A person who was wholly or partly dependent on the deceased and is a grandchild of the deceased, or was, at that particular time, a member of the same household as the deceased.
• A person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.

It’s important to note that the Act doesn’t automatically entitle these individuals to a share of the estate or become a beneficiary. Instead, it provides them with the legal standing to make a claim for provision from the estate.

Recent Ruling: Dimos v Burndred [2024] NSWSC 434

A recent case in the New South Wales Supreme Court, Dimos v Burndred [2024] NSWSC 434, provides valuable insight into eligibility, particularly for adult children. In this case, an adult son who was financially independent and not dependent on his mother at the time of her death made a claim. The court ultimately dismissed his claim, highlighting that being an eligible person does not automatically guarantee a successful claim. The court emphasised the importance of demonstrating that adequate provision was not made in the will, considering factors such as the applicant’s financial needs and the size of the estate. This case underscores the importance of seeking legal advice to understand individual circumstances and the strength of a potential claim.

Factors the Court Considers in Family Provision Claims

When determining if adequate provision has been made in a will, the court considers a range of factors. These factors help the court assess the merits of a family provision claim and ensure a fair outcome. Understanding these factors is crucial for both potential claimants and those involved in administering a deceased estate.

Relationship Between Applicant and Deceased

The nature and duration of the relationship between the person filing the application for a family provision claim and the deceased are paramount. The court recognises that different relationships carry different levels of moral obligation. For instance, a long-term spouse who was financially dependent on the deceased would generally have a stronger claim than a distant relative with whom the deceased had minimal contact. The court will examine the closeness of the de facto relationship, considering factors like living arrangements, emotional dependence, and mutual support.

Financial Circumstances and Needs of the Applicant

The court will carefully assess the applicant’s financial situation, taking into account their income, assets, debts, and earning capacity. The court aims to determine if the applicant can meet their current and future needs without assistance from the estate. Factors such as age, health, and any dependents are also relevant. For example, a young applicant with a disability and limited earning potential might require greater provision than a healthy, financially independent adult child.

Size and Nature of the Deceased’s Estate

The value and composition of the deceased’s estate play a significant role in the court’s decision. A larger estate might allow for greater provision to multiple claimants, while a smaller estate might necessitate more restrictive considerations. The court will also consider the type of assets involved, such as real estate, investments, or personal belongings, as these can impact the distribution options.

Process of Making a Family Provision Claim in NSW

Navigating the family provision claim process in NSW requires a clear understanding of the steps involved. This section provides a step-by-step guide to help claimants and legal professionals understand the procedure.

Time Limits for Filing a Claim

In NSW, a strict time limit governs family provision claims. An application for family provision must be made within 12 months from the date of the deceased person’s death. This underscores the importance of seeking legal advice promptly to avoid missing this crucial deadline.

Commencing Proceedings in the Supreme Court

A family provision claim is initiated by filing a Summons and affidavit evidence in the Supreme Court of NSW. The Summons formally notifies the court and other parties of the claim, while the affidavit presents the applicant’s case, outlining their relationship to the deceased, their financial circumstances, and the reasons why they believe they have not been adequately provided for.

Mediation and Alternative Dispute Resolution

The Supreme Court of NSW strongly encourages parties involved in family provision claims to explore alternative dispute resolution (ADR) methods, such as mediation, before proceeding to a hearing. Mediation offers a structured environment for parties to communicate, negotiate, and potentially reach a mutually agreeable resolution. This approach can often save time, costs, and emotional stress compared to a contested court hearing.

Supporting Your Family Provision Claim

A family provision claim in NSW can be a complex legal process. Gathering the right evidence and presenting a compelling case is crucial for a successful outcome. This section provides guidance on how to strengthen your application.

Gathering Evidence to Support Your Claim

Your family provision claim must contain evidence that clearly demonstrates your eligibility to make a claim and the reasons why you believe adequate provision was not made for you in the deceased’s will.

Here are some types of evidence that can support your claim:

• Evidence of your relationship with the deceased: This could include photographs, letters, emails, or testimonies from family and friends. The goal is to illustrate the nature and closeness of your relationship, especially if you were financially dependent on the deceased or provided care and support.
• Financial records: Provide detailed documentation of your financial situation, including income, expenses, assets, and liabilities. This helps the court assess your financial needs and determine if the provision made in the will is sufficient.
• Evidence of the deceased’s estate: This includes the will itself, grant of probate, and any documents related to the deceased’s assets and liabilities. Understanding the size and nature of the estate is crucial for determining what constitutes ‘adequate provision.’
• Medical records: If your claim is based on health issues or a disability, provide relevant medical records to support your need for financial assistance.

Demonstrating Inadequate Provision

You need to convince the court that the provision made in the will (or lack thereof) does not adequately provide for your proper maintenance, education, or advancement in life.

Consider these factors when building your case:

• Your financial needs: Clearly outline your current and future financial needs, taking into account factors like housing, living expenses, healthcare, and education.
• The size of the estate: If the deceased’s estate is substantial, and you have significant financial needs, it strengthens your argument that adequate provision was not made.
• Contributions to the deceased or their estate: If you provided financial or non-financial contributions to the deceased during their lifetime or helped build their estate, highlight these contributions. This demonstrates a moral obligation for the deceased to have provided for you.

Potential Outcomes of a Family Provision Claim

Court Orders for Family Provision

If the court finds in favour of the applicant, it has the power to make a family provision order. This order can vary depending on the circumstances, but generally involves the court redistributing the deceased person’s estate. For instance, the court may order a lump sum payment to the applicant from the estate or a transfer of a specific asset, such as property. In some cases, the court might also order the payment of ongoing maintenance from the estate to the applicant.

Cost Considerations in Family Provision Claims

The issue of legal costs in family provision claims is significant and often decided at the court’s discretion. In instances where the court rules in favour of the applicant and grants a family provision order, the deceased person’s estate will typically be ordered to cover the applicant’s legal costs. However, if the applicant’s claim is unsuccessful, the court may order the applicant to pay not only their own legal costs but also the legal costs incurred by the defendant, who is usually the executor or administrator of the deceased person’s estate. The potential financial obligations or responsibilities highlight the importance of seeking legal advice early in the process to assess the merits of a claim.

Conclusion

Navigating the complexities of family provision claims in NSW requires a clear understanding of eligibility criteria, the court’s considerations, and the procedural steps involved. This overview has provided a foundational understanding of these key aspects, highlighting the importance of seeking legal advice for personalised guidance.

Remember, each family provision claim is unique and hinges on its specific circumstances. Consulting with experienced legal professionals is crucial to ensure your rights are protected, and your claim is presented effectively within the legal framework of NSW.

Need answers? PBL Law Group’s team is ready to assist—contact us now.

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