Family Provision Act Claim

Everything You Need To Know About Making A Family Provision Act Claim

It’s normal to expect a loved one to provide for you in their will, but sometimes our expectations are not reflected in the inheritance we receive. And occasionally, we don’t receive an inheritance at all. But don’t worry because the law understands this and has guidelines and processes to ensure that those entitled to an inheritance from a loved one receive their fair share. It’s true not everybody is eligible to file a family provision act claim, but those who are, are entitled to plead their case and explain why they feel the will is unjust. At Orman Solicitors, we aim to take the stress out of making a family provision claim and have provided you with everything you need to know about the process. Read on to find out more.

What Is A Family Provision Act Claim?

A family provision claim can be made by an individual who feels they’ve been unfairly provided for or left out of a deceased person’s will. In New South Wales, individuals apply to the Supreme Court, and the challenger must submit their claim within 12 months of the will-makers passing. It is worth noting that a family provision claim can be made any time during the 12 months, and waiting for a grant of probate is not necessary. You can make a family provision act claim if:

• You are an eligible person, and
• You have been left out of a will, or
• Did not receive what you deem a fair share.

Who Can File A Family Provision Act Claim?

Any eligible person can file for family provision in New South Wales, providing it’s within the 12 month eligibility period. However, extenuating circumstances may allow for an extension of this period, and at Orman Solicitors, we recommend that you seek legal advice before lodging a claim.

You should note that you can’t just file family provision if you are unhappy with the will. You have to prove that what you received (if you received anything at all) is not enough to cover your needs and that you should further benefit from the estate. To determine if you’re eligible to lodge a provision act claim, get in contact with our highly experienced team.

What Factors Does The Court Consider When Reviewing A Family Provision Act Claim?

To put it simply, the court can take into account any matter it deems relevant. With that in mind, however, there are fifteen individual matters of Section 60 of the Succession Act (2006) the court will consider when determining a ruling on a family provision claim. They are:

• The applicant’s age
• The applicant’s character
• The relationship shared between the applicant and the deceased
• Whether the deceased had an obligation or responsibility to the applicant
• The financial circumstance (and future financial needs) or the applicant
• The value and/or location of the will-maker’s estate
• If the applicant is supported financially by another person
• Whether the applicant has any physical, mental, or intellectual disabilities
• Whether the applicant made any contributions to increase the value of the estate
• The will-maker has already provided for the applicant in life or from the estate
• Has the deceased person provided assistance, maintenance, and/or support to the applicant?
• Whether any other person has a responsibility to support the applicant?
• Any customary law that may be applicable if the deceased was Aboriginal or Torres Strait Islander
• Any other claims on the estate
• Any or all other matter the court considers relevant

However, no two cases are the same, so it’s important to seek legal advice before lodging a claim. For more information or to discuss family provision act claims further, contact Orman Solicitors. We are here to help.

How To File A Family Provision Act Claim

If you wish to make a claim in New South Wales, you must submit your application to the Supreme Court. Your claim, which will incur a filing fee, should consist of a summons together with an affidavit. These documents should include:

• What orders you are seeking
• The applicant’s eligibility
• Sufficient information pertaining to the orders sought

Additionally, the applicant is required to file a Notice of Eligible Persons. This will identify other potential individuals who may be eligible to make a claim on the estate. Included in this should be another affidavit outlining an estimate of disbursements (third party charges) and costs. Your application will need to have all of your evidence from relevant witnesses from both parties, and after submitting your claim, the matter will then be listed for mandatory mediation. If mediation is unsuccessful, the courts will list your case for a hearing which can occur anywhere between one to two years after the date the application was lodged.

For Help Developing A Family Provision Act Claim, Contact The Team At Orman Solicitors

At Orman Solicitors, we’re committed to delivering the highest quality legal advice and services. We pride ourselves on providing reliable, trustworthy services, unmatched legal experience and compassion and empathy in everything we do. No matter what your circumstances, our team always has the best interests of our clients in mind, and we’ll strive to be an advocate for you and your rights. If you need help with your family provision claim in Sydney or Wagga Wagga, contact the team at Orman Solicitors today.