What is a Family Provisions Claim?
A Family Provisions Claim contests the fairness of the provisions of a Will. An eligible applicant may feel that they have been unfairly or unjustly left out of a Will or received a smaller share of the estate than they are entitled to. A Family Provisions Claim ensures that provisions are made for eligible persons, regardless of if there was a Will and whether the persons were mentioned in the Will. Chapter Three of the of the Succession Act 2006 (NSW) sets out the process the Supreme Court takes in making rulings in a Family Provision Claim. It allows the court to amend the decease’s Will, based on specified grounds.
Singer v Berghouse [1994] [1003] HCA 40-181CLR 201 was a landmark case that determined what was adequate provision for an applicant of a Family Provisions Claim. Vigolo v Bostin [2005] HCA 11, added the concept of a moral duty and obligation when deciding if a person’s application for a Family Provisions Claim was relevant. Singer v Berghouse [1994] introduced a two staged approach for the Court to determine when making a ruling. In stage one, the Court needs to assess the level of maintenance required based on the applicants’ current circumstances at the time of the hearing. The Court must decide if there is adequate provision for the applicant’s proper maintenance, education, and advancement of life, and whether an order can be made in favour of a particular applicant. If the Court does decide an order can be made, then in stage two the Court decides what provisions should be made for the applicant. This is made at the discretion of the Judge, who must consider sixteen matters set out in section 60 of the Succession Act 2006 (NSW). This includes things such as:
- The current and future financial and material needs of the applicant
- The size of the estate
- Whether there are other claims on the estate
- The relationship between the deceased and the applicant
- Any obligations or responsibilities the deceased owed the applicant
- The character and conduct of eligible persons
- Contributions an eligible person made towards the deceased property or welfare.
There are several notable cases where the Court has placed emphasis on the character and conduct of eligible persons of a Family Provisions Claim, and their relationship to the decease. In cases like of Ford v Sims [2009] NSWCA 35 and Madden Smith v Madden [2012] NSWSC 146, the Court deemed parents do not have to make provisions for their estranged children, particularly in cases where the applicant’s character and conduct towards the decease is questionable. In the Andrew v Andrew [2011] NSWSC 115, the Judge decided that the legacy left to an estranged daughter would not be increased given she had limited contact with the deceased. However, the Court ruled in favour of one applicant in the Polistena v Mitton [2011] NSWSC 93, who had minimal contact with the deceased, but dismissed the application of another estranged daughter who had no contact with the decease. Each applicants’ circumstances are considered on an individual basis by the Court.
The Court must also determine if the applicant can make a Family Provisions Claim based on factors outlined in section 59(1) of the Succession Act 2006 (NSW), which includes whether:
- The applicant is an eligible person
- There are factors warranting a person’s application
- The decease’s Will or intestacy rules fails to provide the applicant with proper provisions for their maintenance, education, and advancement in life.
If you would like to make an application to the Court for a Family Provisions Claim, we recommend that you speak to someone specialising in Family Provisions Claims. Contact us for a free thirty-minute consultation.
Who Can Make a Family Provision Claim?
Section 57 of Successions Act 2006 (NSW) outlines who is eligible to make a Family Provision Claim. This includes:
- A spouse of the deceased person at the time of the deceased death
- A person in a de facto relationship at the time of deceased death
- A child of the deceased
- A former spouse of the deceased
- A person who at a particular time was wholly or partly dependent on the deceased.
- A grandchild of the deceased who at a particular time was a member of the household of the deceased.
- A person whom the deceased person was living in a close personal relationship at the time of the deceased death.
The Succession Act 2006 (NSW) definesa close personal relationship as two adult persons (other than those in a marriage or de facto relationships) who are living together, one of which who provides domestic support or personal care the other. This excludes care provided for a reward or fee on behalf of another person or agency.
A de facto relationship is defined using section 21C of Interpretation Act 1987 (NSW). The Interpretation Act 1987 (NSW) includes de facto relationships to be both same sex or different sex couples.
Any eligible parties who wish to make a Family Provisions Claim, are making a claim against the person representing the estate of the deceased. Applicants for a Family Provision Claim must notify the estate of any other eligible persons that know who can make a Family Provision Claim. It is then up to the estate to notify the individuals. There can be circumstances where the estate is unaware of other eligible persons who may wish to make a Family Provisions Claim, and therefore, this should be considered when negotiating a settlement with known applicants.
If you believe that you are eligible to make a Family Provisions Claim, we recommend that you speak to someone specialising in Family Provisions Claims. Contact us for a free thirty-minute consultation.
When can a Family Provisions Claim Happen?
A Family Provisions Claim can be made after Probate or Letters of Administration have been granted. Applications for a Family Provision Claim needs to be made to the Supreme Court within 12 months of the person’s death, regardless of if there was a Will or the eligible party was mentioned in the Will. Any claim made after 12 months will need consent of the Court. If anyone is thinking of making a claim, they should file their claim within 12 months of death of the deceased. An eligible party can forgo their right to make a Family Provisions Claim if the Court approves.
We recommend that you speak to someone specialising in Family Provisions Claims before making an application to the Supreme Court. Contact us for a free thirty-minute consultation.
When Does the Court Hear a Family Provisions Claim?
Section 98 of the Succession Act 2006 (NSW) requires the Court to refer an application for a Family Provisions Claim to mediation before hearing the case unless there are special reasons why the applicant cannot go to mediation.
Mediation may resolve any disputes between parties and make an interim order before the Family Provisions Claim is heard by the Court. The Court may decide to confirm, change, or withdraw the interim order. The Court may make a Family Provision Order in a written agreement if the parties have agreed to a decision in mediation or on the advice of a lawyer. A written agreement means that the parties have consented to making a Family Provision Order based on the agreed terms.
Under section 65 of the Succession Act 2006 (NSW), a Family Provision Order must specify:
- The person or persons whom the provision is made.
- The amount and nature of the provision.
- The way the provision is provided. This could include a lump sum, periodic payment, existing or future property, absolute interest or limited interest, property set aside as class funds the benefit two or more persons or any other manner decided by the court.
- Conditions, restrictions, or limitations made by the court.
In accordance with section 99 of the Succession Act 2006 (NSW), the costs associated with a Family Provision Claim such as Court and mediation costs, comes out of the estate or notional estate or as the Court sees fit. However, there may be times when the Court may order an applicant to pay for the costs or cap the amount of the costs that can be claimed from the estate.
We recommend you speak to a someone specialising in Family Provisions Claims so that you can ensure you get what you are entitled to. Contact us for a free thirty-minute consultation.
Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak a lawyer about your personal circumstances.