How to claim on a family member’s will

1-November-2013 Contested Wills By admin

Has a family member recently passed away without leaving anything from their estate for you? If so, you may be entitled to make a family provision claim under the Succession Act. A family provision claim is an application for an order for provision to be made out of an estate for a person’s maintenance, education or advancement in life.

If you want to bring such a claim, there are some important factors that you must be aware of.

Firstly, you must bring the claim within 12 months of the person passing away.

Secondly, you must qualify as an “eligible person” under the Succession Act. There are six categories under which you can qualify as an eligible person and they are:

  1. The wife or husband of the deceased when the deceased died;
  2. In a de facto relationship with the deceased when he or she died;
  3. A child of the deceased;
  4. A former wife or husband of the deceased;
  5. A person who was living with the deceased in a close personal relationship at the time of death.
  6. A person who was, at any particular time, wholly or partly dependant on the deceased, and who is a grandchild of the deceased person or was, for a time, a member of the household of which the deceased person was a member.

In determining such applications, the court follows a two-stage process. Firstly, the Court looks at whether, under the will or intestacy rules, there is inadequate provision for the applicant’s proper maintenance, education and advancement in life. This is a question of fact. Secondly, if so, the Court needs to consider what, if any, provision ought to be made out of the estate in favour of the applicant. This is a discretionary exercise.

For a court to make an order for family provision, the court must be satisfied that:

  1. The person is an eligible person;
  2. At the time the application is being considered by the court, adequate provision for the maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules.

To discuss your prospects of making a family provision claim, please contact Streeterlaw Sydney Lawyers  on 8197 0105 or by email at advice@streeterlaw.com.au


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