Family provision claims

A family provision claim is a claim brought by an ‘eligible person’ [as defined under section 47 of the Succession Act 2006 [NSW] [‘the Act’] either for provision from the estate of the deceased in circumstances where the claimant was left out altogether or for further provision in circumstances where the claimant was left something but this amount is arguably inadequate.

These types of claims are perceived by clients to be ‘scary’ and solicitors often get asked what is the point of making a Will if it can just be challenged.

During the year 2021, almost 900 family provision applications were filed with the Supreme Court of New South Wales. Some of the lessons learnt from these were as follows:

1.A claim is not guaranteed to be successful. Several applications in 2021 and 2022 were unsuccessful.

2.These definitions of ‘eligible person’ and ‘close personal relationships’ under the Act have been narrowed. To satisfy the definition of an ‘eligible person’ with a close personal relationship with the deceased [other than by marriage of a de facto relationship, the claimant and deceased must have lived together in the same residence, but not necessarily full time but be more than frequent visits.

3.Practitioners lacked preparation and were not completely aware of the specifics for the provisions their clients were seeking. A claim for provision or further provision from an estate is based on the claimant’s needs. Some practitioners had submitted a ‘wish list’ for their client as opposed to a ‘needs report’. These ‘wish lists’ lacked evidence to support why their client should receive provision. It is simply not good enough to include claims for overpriced accommodation in sought-after suburbs, or alleging that the accommodation must be a house, and not an apartment which is likely to be cheaper, with no other explanation.

4.An adverse costs order is always a risk when litigating. If an application is dismissed, the unsuccessful claimant will generally see themselves having to pay costs [but the practicalities of recovering those funds from the unsuccessful claimant require separate consideration]. Litigants should not merely file claims expecting their legal costs to be paid from the estate in full, or at all.

5.Freedom of Testamentary Intentions.

This is the freedom available to every person who has the adequate testamentary capacity, to decide what happens to their estate when they die. Whilst the court has a role and discretion in determining family provision claims, the Court will give great weight to the testator’s wishes and will only intervene in circumstances where the deceased testator failed to make adequate and proper provisions for the claimant. It is not the Court’s role to reward the applicant or to consider notions of fairness or equity.

Although the Act allows for a Will to be challenged, it is important to keep in mind that not every Will is going to be contested and that a properly considered and drafted Will would help minimalise the risk of a claim or avoid a claim altogether.

RN LEGAL has assisted many clients with the delicate task of creating and updating wills and on many occasions has acted for clients when a will they are beneficiary to has been contested. RN LEGAL has the experience, expertise and resources to help you write and safeguard your will.

Don’t leave the distribution of your estate and your family’s future to chance. Contact us on (02) 9191 9293 or if you require legal advice in relation to your will or estate matter.