In NSW a Will can be challenged, contested or defended if you are an eligible person and can make what is known as a Family Provision Claim, if you have been left without adequate provision from a deceased estate.
You can make a Family Provision Claim if the deceased was domiciled in NSW when they died and owned assets in NSW. Family Provision Claims can also be made if the deceased lived elsewhere but owned assets in NSW. If you think you have a claim, you should act immediately before the estate is sold, transferred or the estate funds are spent. You should also be aware of the time limits that the Act imposes.
When You Can Make a Family Provision Claim
You can make a Family Provision Claim if you are an Eligible Person, according to section 57 of the Succession Act and you believe that the deceased did not make “adequate provision”.
The Supreme Court of NSW will take into account the following if you make a claim under “adequate provision”:
- Your financial position;
- The relationship you had with the deceased; and
- The relationship the deceased had with other people who are eligible to make a claim.
Eligible persons include:-
- the deceased’s spouse at the time of death;
- someone who was in a de facto relationship with the deceased at the time of the death;
- deceased’s former spouse/spouses;
- deceased’s child/children;
- any person who was dependent, wholly or partly on the deceased at the time of death or at any particular time previously;
- a grandchild of the deceased;
- a person who lived in a very close relationship with the deceased and had relied upon the deceased at the time of death.
In NSW, a Family Provision Claim must be commenced within 12 months of the date of death (if the deceased died after 1 March 2009). However there are some exceptions for Applications to be made out-of-time. Call us to find out more about these Applications.