Making a Claim Against an Estate Tuesday 19 October 2010
Everyone has a right to dispose of their property and assets to whomever and however they wish and such wishes are generally documented in a will. The law generally upholds that person’s wishes, whether those wishes are fair or not. However, in circumstances where the law considers the will to be grossly unfair with respect to particular persons, it allows those persons aggrieved to challenge the will. The court will only intervene where it is clear that inadequate provision has been made in the will for an eligible family claimant.
The law that governs this area of law is the Succession Act 2006 (NSW) (“the Act”) which outlines the law in relation to family provision orders. Section 57 of Act sets out a list of eligible persons who are entitled to make a claim against your estate as follows:
1.A husband or wife of the deceased person at the time of the deceased person’s death, including a person who was living in a de facto relationship with the deceased;
2.A child of the deceased person, or if the deceased person, was at the time of his or her death, a party to a domestic relationship, a person who is, for the purposes of the Property (Relationships) Act 1984 (NSW), a child of that relationship;
3.A former wife or husband of the deceased person;
4.A person who was, at any particular time, wholly or partly dependent on the deceased person and who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member; and
Making a claim against an estate is not as simple as it sounds – a person must have sufficient grounds and capacity in order to do so. Section 60 of the Act sets out the matters which are to be considered by the Court in granting a family provisions order, which may include but are not limited to:
(a)any family or other relationship between the applicant (eligible person) and the deceased person, including the nature and duration of the relationship;
(b)the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate;
(c)the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered;
(d)the age of the applicant when the application is being considered; and
(e)whether any other person is liable to support the applicant.
An application may be made by an eligible person who has sufficient grounds, provided that the application is made not later than 12 months after the date of death of the deceased person, unless the Court otherwise orders. An application may be made whether or not administration of the estate of the deceased person has been granted.
It is recommended that you regularly review your will to avoid any such applications.
Speak to one of our lawyers today to discuss your current will, obtain advice in respect of your estate planning needs and/or update your will in order to avoid any applications for a family provision order against your estate.
A case study on Making a Claim against an Estate is included in this newsletter.
If you would like to know more about making a claim against an estate, please contact Graham Fullick (Director, Senior Lawyer) or Melissa Hoffmann (Lawyer) on (02) 9283 2566.
