How to claim provision from an estate

If you want to make a claim on an estate or are defending a claim, read on for some useful tips.

While the ability to challenge someone’s will was established in the early 1900s, the frequency of asking a court to award someone funds not provided in a will or more provision from a will, has increased significantly in the last 20 years. Whilst there are a number of reasons for this some key factors include more complex family arrangements, someone dying with a greater value of assets, and the increasing pricing of property and general cost of living.

What you may regard as fairness in a will is not a basis for a Claim.

If you can make a claim, then the court will consider you have been provided with “adequate” and “proper” maintenance from the estate of a deceased.

Before considering what constitutes “adequate” and “proper” maintenance the claimant must satisfy a number of hurdles. The claimant must satisfy an eligibility hurdle based on their relationship to the testator as outlined in section 57 of the Succession Act 2006 (NSW). The specified relationships are as follows:

(a) a spouse at the time of death

(b) a de facto at the time of death

(c) a child of the deceased person,

(d) a former spouse of the deceased person,

(e) a person who was, at any particular time, wholly or partly dependent on the deceased person, and is a grandchild of the deceased person or a member of the household of which the deceased person was a member,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.

A further hurdle for a claimant is that absent permission from the Court, the claim must be filed within 12 months of the deceased’s date of death.

n considering what is an adequate and proper provision for an applicant the Court must determine what provision ought to be made for the “maintenance, support, education and advancement in life” of an eligible applicant. This provides the Court with broad discretion, and in particular the term “advancement in life” has been given a wide meaning by the Courts.

Any claim will involve the court considering the will (if one exists), your relationship with the deceased, the size of the estate, other claimants and beneficiaries, as well as any other relevant factors.

If you are considering making a Family Provision Claim it is important you receive advice regarding your prospects of success and the evidence required to optimise your claim.