By Estephen Bugarin
For most people, it is common practice to draft and leave a will after their passing. The contents of the will may seek to provide various assets to the testator’s (the person leaving the will) spouse, children, family members and/or close friends as beneficiaries. Usually, the contents of a will may not be seen until the passing of the testator. Under these circumstances, it is difficult to know whether you have been adequately or properly left gifts by the testator. Are there opportunities you can take to contest the will? What are your rights? These are the general questions asked when a suspecting beneficiary believes they may have not been left gifts under the will that is believed to satisfy their rights.
When seeking to contest a will, the legal action taken is through a Family Provision Claim, and this legal course of action is increasing in situation of blended families and step children.
What is a Family Provision Claim?
A Family Provision Claim is a legal claim whereby a person seeks under the Supreme Court of NSW for a larger share of an estate than what they have been bestowed under the will. In other cases, this legal course of action may also be exercised despite circumstances where the deceased has failed to have left a valid will making their estate “intestate”.
To make a Family Provision Claim, the applicant must be:
- An Eligible Person; and
- The claim made within 12 months since the date of the of the deceased.
The main legislative item which deals with Family Provision Claims is the Succession Act 2006 (NSW) (‘the Act’)[1].
Who can be an Eligible Person?
Section 57 of the Act outlines who may be regarded as an eligible person. The people that may make a claim are:[2]
- The spouse at the time of death. This includes a ‘separated’ spouse (a separated but legally married wife);
- De facto partner living with the deceased at the time of death;
- A child of the deceased;
- Former spouse of the deceased (different to a ‘separated’ spouse);
- Grandchild(ren) who have been partially/wholly dependent upon the deceased;
- A person wholly/partially dependent and at any time a member of the household of the deceased.
- A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.
What will the Court have to Determine?
When a Family Provision Claim has been sought, under s 59 there are three following items which the court must satisfy before a Family Provision Claim is made:[3]
- The court must be satisfied that the applicant is an eligible person;
- In the case of a person who is an eligible person, are there factors that warrant the making of the application?; and
- Has the applicant been provided with an adequate provision for the proper maintenance, education or advancement in life by the will of the deceased?
There are several factors that need to be considered when distributing the estate of a deceased person. During the process of will making, a potential testator must ensure that they have taken into account all possible circumstances and have provided for every person they believe deserves a share of their estate, and failure to do so may result in litigation upon the distribution of the estate after their death.
Foulsham and Geddes notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you are a beneficiary who believes that you have not been adequately provided for in the will and wish to make a claim, please do not hesitate to contact our firm to book an initial consultation. Our team of experienced Wills & Estate solicitors are here to assist you. Please get in touch with us on 02 9232 8033.
[1] Succession Act 2006 (NSW) (‘the Act’).
[2] Ibid s 57.
[3] Ibid s 59.