Left out of a will, or defending one.
We act for people making a family provision claim in NSW and for executors responding to one.
A family provision claim asks the Supreme Court of NSW to provide for a person from a deceased estate.
It can be made whether there is a will or not.
Only an eligible person can apply, and there is a strict time limit.
We act for claimants and for executors and administrators.
Who is an eligible person
Section 57 of the Succession Act 2006 lists who may apply:
- The spouse of the deceased at the time of death.
- A person living in a de facto relationship with the deceased at the time of death.
- A child of the deceased, including an adopted child.
- A former spouse of the deceased.
- A person who was at any time wholly or partly dependent on the deceased, and who is a grandchild of the deceased or was at any time a member of the deceased's household.
- A person living in a close personal relationship with the deceased at the time of death.
Being eligible does not mean a claim will succeed. The court decides whether provision should be made and how much.
The time limit
Under section 58, a claim must be made within 12 months after the date of death.
The court can allow a later claim only if sufficient cause is shown.
A claim is made on the day it is filed in the court registry.
A claim can be made whether or not probate or administration has been granted.
Property outside the estate
In NSW, the court can in some cases treat property that left the deceased before or at death as part of the estate for a claim. This is called notional estate.
If you are making a claim
- Act early. The 12 month limit runs from the date of death, not from the grant.
- Tell the executor or administrator in writing that you intend to claim. This matters if they plan to distribute.
- Gather documents about your relationship with the deceased, your finances and your needs.
- Get advice on whether you are an eligible person and on the strength of the claim.
If you are an executor and a claim is made
- Do not distribute the affected part of the estate while the claim is pending.
- Consider publishing a notice of intended distribution after the grant. It can give protection under section 93 against claims you did not know about when you distributed.
- Preserve estate assets and keep full records.
- Get advice on your duties before you respond to the claim.
Where people get caught
The 12 month limit is missed
A late claim needs the court's leave, and sufficient cause must be shown.
The claimant waits for probate before acting.
The time limit runs from death. A claim can be made before any grant.
The executor distributes after hearing of a claim.
An executor with notice of a claim or intended claim should not distribute the affected property.
The executor assumes only the estate is at risk.
Property outside the estate may be designated as notional estate in some cases.
A person assumes they are not eligible.
The categories include former spouses and some dependants. Get advice before deciding.
Common questions
Can a claim be made if there is no will?
Yes. A claim can be made against an estate whether it passes under a will or under the intestacy rules.
Is a stepchild an eligible person?
Not as a child. A stepchild may be eligible if they were dependent on the deceased and a member of the deceased's household. Each case turns on its facts.
Can the time limit be extended?
Yes, if the court is satisfied that sufficient cause has been shown.
Does a claim stop the estate being administered?
No. Administration can continue, but the executor should not distribute property affected by the claim until it is resolved.
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