Family Provisions Claims – Contesting a Will

Posted on January 1st, 2014

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by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

Chapter 3 of the Succession Act (the Act) governs Family Provision Claims in New South Wales. A Family Provision Claim (FPC) is an application for a Court order that provision be made out of a deceased’s estate for a person’s maintenance, education and advancement in life.

A FPC may only be made by an “eligible person” as defined in the Act. To qualify as an eligible person, an applicant must fall into one of the following categories:

  1. Spouse of the deceased;
  2. De facto of the deceased;
  3. Child of the deceased;
  4. Former spouse of the deceased;
  5. (i) Wholly or partially dependent on the deceased, at any particular time, and
    (ii) Grandchild or a member of the household of the deceased; or
  6. In a close personal relationship with the deceased.

Once an applicant establishes they are an eligible person, a two stage process is applied by the Court to determine whether a claim will be successful. This involves looking at:

  1. Whether inadequate provision was made for the applicant’s proper maintenance, education and advancement in life; and
  2. If so, what, if any, provision ought to have been made for the applicant out of the estate.

Essentially, this two stage test looks at whether the applicant has a need for any or any additional provision from the estate and whether the deceased had a moral obligation to provide provision (or additional provision).

The possibility of a FPC is an important consideration in estate planning and requires careful contemplation of each individual’s circumstances. Carefully drafted Wills may significantly limit the scope and practicality of an eligible person successful contesting a deceased’s Will.

Lana Black is a Solicitor at Mullane & Lindsay and practises  with Robert Lindsay and Michael McGrath  in the Commercial Law, Property Law and Wills & Estate Planning team. If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

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