Burgess Thomson Lawyers

Family Provision Claims

Wills & Estate Planning

Newcastle's experts in family provision claims

Family provision claims involve a person making an application to the Supreme Court on the basis that they are entitled to a portion, or larger portion of a deceased person’s estate. In NSW there are restrictions on who can make such an application to stop the Court from being flooded with applications.

Our team at Burgess Thomson work with clients to assist them in making applications so they are able to get the share of an estate they feel they deserve. We can also help resolve family provision claims outside of court through informal negotiations. Our experience and skill in such negotiations are effective ensuring that the interests of our clients are met and all parties reach a fair solution. We have years of experience in assisting both claimants and executors reach such agreeable outcomes.

With our experience comes the understanding that losing a loved one can come with highly sensitive and difficult situations. It may be that you feel you have been unfairly provided for in the will of the deceased, or even that you are on the other side of such a claim, where you are left defending the wishes of your loved one. We are able to help you navigate such a complicated situation in the event that it occurs to ensure that all aspects of the matter are considered and addressed.


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Who can make an application?

Applications can only be made by ‘eligible persons’ which is set out in section 57 of the Succession Act 2006 (NSW) to include:

(a) The spouse of the deceased at the time of their death;

(b) The de facto partner of the deceased at the time of their death;

(c) A child of the deceased;

(d) A former spouse of the deceased;

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

(f) A person who was in a close personal relationship with the deceased at the time of their death.

The applicant must have been left out of a Will entirely or feel as if the benefit they have received is not enough for their needs. The applicant must then show the court that they have a need for further provision (a further benefit) from the estate.

When can an application be made?

The application must be filed within 12 months of the deceased’s death. It is not necessary to obtain a grant of Probate or a grant of Letters of Administration before making an application for family provision.

When can an order be made by the court?

A Court is empowered to make a family provision order if satisfied that the person making the application is an eligible person, or if an eligible person by reason of paragraph (d), (e) or (f), are satisfied that there are factors which warrant the making of an application. The Court must also be satisfied that adequate provision for maintenance, education or advancement in life has not been made by the Will or the operation of the intestacy rules.

What orders can the court make?

The court can make any order the court thinks ought to be made for the maintenance, education or advancement in life of the eligible person having regard to the facts of the case. In making such an order there are mandatory considerations for the court to have regard to listed under section 60 of the Succession Act 2006 (NSW) which include, nature of the relationship between the applicant and the deceased, the financial resources and needs of the applicant, evidence of testamentary intentions of the deceased and the nature of any responsibilities owed by the deceased to the applicant.

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