Legal Tip 50: Family Provision Claims Against Estates

Legal Tip 50: Family Provision Claims Against Estates


Have you seen the ads by lawyers - “have you been left out of a will” sort of thing. These are about “family Provision” claims mostly.


People have the freedom to give their assets to anyone they choose to. But in some cases this can lead to harsh outcomes so laws have been enacted to protect the ‘vulnerable’. Where a person has been left out of a will they can make what is known as a “Family Provision Claim”.


Under NSW law Family Provision Legislation comes under the Succession Act. Only certain people can make a Family Provision claim and these are people who meet the definition of “eligible persons” under section 52 Succession Act 2006 (NSW) http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2006138/s57.html


An eligible person is (summary):

1. husband/wife at time of death
   
   
2. defacto at the time of death
   
   
3. child
   
   
4. former wife or husband
   
   
5. a dependant who was a grandchild or member of the deceased’s household
   
   
6. someone who was living in a close personal relationship at the time of death
   

Note what is not included in the definition

• stepchildren
  
  
• former de facto partners.
  
  
• Cousins etc
  

(unless in a close personal relationship or a dependent at the time of death).


The Courts have the power to adjust a deceased person’s will or how the estate will be paid out under the intestacy laws by virtue of s59.


The court can consider certain matters which are listed at s60:

http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2006138/s60.html


When making a will you should consider all the potential eligible persons and whether you are leaving adequate provision. If there is someone you want to specifically exclude you need specialised legal advice.

 

From what I've researched, family has a substantial chance of getting stuff.

If someone genuinely did want to leave everything to say friends or charity, is there a way of wording Will as such?

 

Yes, but it would always be attackable.

If you really want to do something like that then gift while alive - and 3 years before death (for NSW).

 

Ok ill set my diary

 

Say you had 10m in assets. The wife gets 20%, the 80% goes to the kids. The wife successfully gets her share up to 40%, what happens to the remaining 60%? Is it still split 50/50 between the kids? Or is everything changed completely the minute just one change is made?

 

if one share goes up others go down. It may be equal, but may not, it depends on the situation.