FAMILY PROVISION CLAIMS & CHALLENGING A WILL
WHAT IS A FAMILY PROVISION CLAIM?
A Family Provision Claim is a claim by a person to the Supreme Court of NSW to seek adequate provision from the estate of a deceased person.
A claim can be made where either the deceased left a Will, or even when the deceased had no Will but the statutory order for next of kin on intestacy does not provide adequate provision.
A moral obligation to provide for a person may not of itself be sufficient to maintain a claim.
WHO CAN MAKE A FAMILY PROVISION CLAIM?
The following persons are eligible to make a claim:
The deceased’s spouse at the time of death;
A person who was living in a de-facto relationship with the deceased at the time of death;
The deceased’s child;
The deceased’s former spouse;
A person who was Dependent (wholly or partly) on the deceased at a particular time or a grandchild of the deceased, or a member of the household of the deceased;
A person who lived in a close personal relationship with the deceased when the deceased died. For example two adults may be classified as living in a close personal relationship if they live together and provide personal care and domestic support, without receiving payment or volunteering for a charity.
A parent, sibling, step-child and former de-facto spouse are not expressly listed as eligible persons. However, such persons may be eligible under category (e) if they lived with the deceased and were dependent on the deceased. In addition to eligibility, the person making the claim has to prove “need” given their day to day maintenance, education and advancement in life.
WHAT IS A CHALLENGE TO A WILL?
A challenge to a Will can, in addition to a Family Provisions Claim, take a number of forms, commonly being:
a challenge against the validity of the Will on the grounds that the deceased lacked mental capacity to make it, was under the influence of a third person or belief when it was made, or that it was forged or made fraudulently;
a challenge against the meaning of certain parts of the Will;
a challenge on the grounds of errors or mistakes; and
a challenge on how the estate is being administered.
WHO CAN CHALLENGE A WILL?
Any person who has, or represents a person who has, an interest in the estate can challenge a Will. You do have a right to contest the validity of a Will if you:
were named as a beneficiary in an earlier Will;
are a beneficiary in the deceased’s last Will;
would be beneficiary under the laws of New South Wales if the deceased did not have a Will.
WHO DEFENDS A CHALLENGE AGAINST A WILL?
The executor(s) has the responsibility of defending all challenges against a Will. If you have been named the executor of a Will, you have the responsibility to defend any challenges made to the Will. Executors will need legal advice whenever they are confronted by another person who intends to make a claim upon the estate of a deceased person. Contact us for a free initial discussion.