Challenging a Will – Eligibility for Family Provision

Eligibility for Family Provision Claims 

If you have been left with an inadequate provision in a will, you may wish to apply for an increased benefit from the estate. This type of claim is called a family provision claim. 

To be eligible to apply for a family provision order under the Succession Act 2006 (NSW) (‘the Act’), you must be an “eligible person” within the meaning of the Act.

“Eligible persons” who may apply to the Court for a family provision order with respect to the estate of a deceased person include a:

  1. wife/husband;
  2. de facto partner;
  3. child;
  4. former wife/husband;
  5. a person who was at any particular time dependent on the deceased and a grandchild, or was a member of the same household as the deceased; or 
  6. a person living in a “close personal relationship” with the deceased. 

 

In the case of a former spouse, dependent grandchild, member of the same household, or person living in a “close personal relationship” with the deceased, the applicant must show that there are “factors warranting” the making of the application. Factors which warrant the making of an application are factors which may be considered to impose a moral duty on the deceased to provide for the applicant from their estate. A wife, husband, de facto partner or child do not have to prove factors warranting the making of an application and are considered eligible as of right by virtue of their relationship with the deceased. 

If you are an eligible person under the Act, the Court must then be shown that adequate provision for the proper maintenance, education or advancement in life has not been provided to the applicant. This generally translates to a requirement that the applicant must have financial needs in order to receive some provision from the estate.

If you believe that you have been left out of a will or would like advice from our experienced team about contesting an estate, please contact us for more information.  

The information contained in this article is not a substitute for legal advice and should be considered as general information only. 

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