What is a Family Provision Claim and What Does it Entail?

When a family member passes and has left a Will, it’s not uncommon for the estate to be divided unfairly among the recipients. In fact, we’ve dealt with many cases where beneficiaries have had to contest a Will for being under-recognised – and in some cases, completely left out. That’s where a Family Provision Claim comes in.

A family provision, otherwise known as a Chapter 3 Claim, is an application for the Court that greater provision be made to the applicant from the estate of the deceased for the maintenance, education or advancement of life.

Who is Eligible to Make a Claim?

Under Section 57 of the Succession Act, these are the people who are eligible:

  • Surviving husband or wife of the deceased.
  • De-facto of the deceased.
  • Child of the deceased, including adopted children.
  • Former divorced husband or wife of the deceased.
  • Someone who was either:
  • Wholly or partly dependent on the deceased.
  • A member of the deceased’s household.
  • A person who was in a close relationship with the deceased.

What Reasons Does the Court Consider for a Claim?

There are certain elements that may vary from case to case but in every provision claim, the Court will consider evidence on the following:

  • If the applicant or applicants were dependent on the deceased.
  • If the share of the deceased’s property is not adequate for their maintenance and support.
  • If the relationship between the deceased and the eligible persons began after the last Will was made.
  • If the Will does not provide enough for the eligible persons who were ex-partners or children from previous marriages or de facto relationships.
  • If the eligible persons believe that the Will is grossly unfair.
  • If the eligible persons can prove that the Will maker was unduly influenced by one of more of the other beneficiaries of the Will.
  • If the Will is not clear.

How Long do you Have Before Making a Family Provision Claim?

A claim by an eligible beneficiary must be made to the Supreme Court of New South Wales no longer than twelve (12) months after the Will maker’s death.

For special circumstances, it is possible to apply after the twelve months has lapsed but you must provide the Court with sufficient evidence to support your reasons.

Contesting an estate is not any easy task and it can be an incredibly bumpy road to navigate. So, if you find that you’ve been unfairly compensated in someone’s Will and have grounds to submit a Family Provision Claim, speak to one of our estate lawyers. We’re known renowned for winning the more difficult cases, and for supporting our clients through highly emotional legal battles with our empathetic and compassionate approach.

Because at Taylor & Scott Lawyers, we care for you.