FAMILY PROVISION CLAIMS

Only certain persons are eligible to commence proceedings for family provision out of a deceased person’s estate. In accordance with section 57 of the Succession Act 2006 (NSW), these include:

(a) A person that was married to the deceased at the time of their death and otherwise referred to as a spouse;

(b) A person who was living in a de facto relationship with the deceased at the time of their death, including those people in a same sex relationship;

(c) A child of the deceased person. This also includes those children who were adopted by the deceased at any time during that child’s lifetime;

(d) A former spouse such as an ex-wife or ex-husband of the deceased;

(e) A grandchild of the deceased who was also wholly or partly dependent on the deceased person at any time during the deceased’s lifetime;

(f) A person who lived with and was wholly or partly dependent on the deceased person at any time during the deceased’s lifetime; and

(g) A person who was living with the deceased at the time of their death and was either providing the deceased with domestic support and personal care and/or the deceased was providing them with domestic support and personal care, without payment or reward or on behalf of another person or organisation.

Meeting the eligibility threshold is only the first step when it comes to contesting a will. Before the court hands down a decision as to whether adequate provision has been made for the maintenance, education, and advancement in life for a claimant, the court will consider what is known as the “section 60 factors”. In accordance with section 60 of the Succession Act 2006, the court will consider:

(a) The relationship between the deceased person and the claimant, including the type of relationship and length;

(b) Any obligations or responsibilities owed to the claimant by the deceased person or to any beneficiary of the deceased’s estate;

(c) What the estate is made up of and the size of the estate. This also includes notional estate which can be superannuation, life insurance, property owned as joint tenants with the deceased and another person at the time of their death or property or cash given away with the intent of avoiding a family provision claim within 3 years immediately preceding the deceased person’s death;

(d) The financial position of the claimant which includes their assets, liabilities, income and expenditure as well as their financial need for provision from the estate. All beneficiaries’ financial positions will also be taken into consideration if they wish to raise their financial circumstances as a competing beneficiary;

(e) The financial position of any person that the claimant is living with;

(f) The claimant’s health, including physical, mental or intellectual disabilities that they suffer from. Again, the court will also consider a beneficiary’s health circumstances if they wish to raise same;

(g) The claimant’s age at the time of hearing;

(h) Any financial or other contribution by the claimant to the deceased’s person’s estate which can go towards the building up of estate assets, purchase of estate assets or improvement of estate assets or to the welfare of the deceased person or their family. This can include before or after the deceased’s person’s death and for which allowance has not been paid or received by the claimant;

(i) Any gifts made by the deceased to the claimant either out of the deceased person’s estate or during the lifetime of the deceased;

(j) Any evidence made by the deceased person as to their testamentary intentions, which includes statements made by them;

(k) Whether the deceased person was financially supporting the claimant, either wholly or partly, before their death and to what extent;

(l) Whether there is any person that has the responsibility to support the claimant;

(m) Whether there is any relevant conduct of the claimant before and after the deceased person’s death;

(n) Whether there is any relevant conduct of another person before the deceased person’s death;

(o) Any relevant Aboriginal or Torres Strait Islander customary law;

(p) Any other matter that may be considered relevant.

Strict time limits apply when it comes to contesting a will. The law states that a claim must be made within 12 months from the deceased’s date of death.

Although you do have 12 months from the deceased’s date of death to make a claim, an executor or administrator of a deceased’s estate can distribute the estate after 6 months from the deceased’s date of death which makes things a little more complicated, particularly if there are multiple beneficiaries.

It is important to seek advice early to find out your rights.

There are circumstances where claims can be made outside the 12-month time limit, but these claims need to be considered on a case-by-case basis.

It is important the claimant seek advice straight away if it has been more than 12 months from the deceased’s date of death.

A claim is made by filing a Summons in the Supreme Court of New South Wales seeking an order that provision be made for the claimant’s maintenance, education, and advancement in life.

A fee is payable at the time the Summons is filed however this can usually be postponed is the claimant does not have the funds to pay same.

An affidavit will also be completed and filed with or shortly after the proceedings are commenced which will comprise of the section 60 factors (referred to above) and as they relate to the claimant’s claim.

Following the filing of those proceedings, a directions hearing will be appointed. A directions hearing is a procedural court process where the court provides a timetable to the parties for the general running of their proceedings. This timetable usually includes dates by which the parties are to file their evidence in the proceedings. A claimant is not required to attend the directions hearing.
A mediation or settlement conference, which is compulsory in all family provision claims, will be appointed approximately 6-10 weeks from the initial date of filing proceedings.

If settlement is reached at mediation/settlement conference, orders will be entered into between the parties to reflect the agreement reached. Those orders will then be recorded with the court.

If settlement is not reached, the parties will go back before the court for a further directions hearing where further orders will then be made to progress the proceedings to a court hearing, where the proceedings will be determined by a judge. The claimant, as well as their witnesses, will be required to attend the hearing.

Hearings are dependent on court availability and the cooperation of the parties when it comes to service of evidence in a timely manner. Usually, hearing dates are not provided until at least 12 months from the initial filing of proceedings.

Once a claimant’s proceedings is heard by a judge, the judge will deliberate and hand down his/her decision over the coming months.
Once a decision is made by the judge, and unless an error occurred in their judgement resulting in an appeal, the parties will be bound by that judgement.

We find that most matters settle at mediation and never see a court room, or prior to hearing without the need for a determination by a judge. In any event there is ample opportunity to reach an agreement with the opposing party, even before proceedings are commenced.

If you are successful in your proceedings, part of your costs may be paid from the estate and/or the entitlement you receive from the estate, not your own pocket.

August and Claire Lawyers have acted for many claimants under a no win no fee agreement. Ask us about our no win no fee agreement and how we can assist you today.