Deaths before 1 March 2009 – Summary of Family Provision Act NSW 1982

That Act provides that a person will only be entitled to make a claim for provision if that person is an “eligible person”. An eligible person is defined in the Act to include the following:

a. A person:

i. who was the wife or husband of the deceased person at the time of the deceased person’s death; or

ii. with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death. There are two types of domestic relationships, one is a “de facto” relationship. The other is any close personal relationship between two adults who live together, where one or both provide domestic care and personal care to the other; or

b. 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, amongst others, a natural or adopted child of that relationship; or

c. A former wife or husband of the deceased person; or

d. A person who:

i. at any particular time, wholly or partly dependant upon the deceased person, and who is a grandchild of the deceased

person; or

ii. at any particular time, wholly or partly dependant upon the deceased person and who was, when dependant on the deceased person, a member of the household of which the deceased person was a member.

If the person is not an eligible person, then the person has no entitlement.

If the person is an eligible person, then the mere fact that the person is an eligible person does not mean that the person automatically has an entitlement to provision from the deceased’s estate. In determining whether a person has an entitlement to provision from an

estate, the Court will take into account the following factors:

1. Whether any provision already made from the estate was inadequate for the property maintenance, education and advancement in life of the person.

2. If no provision was made from the estate, whether the person has a need for provision to provide them with proper maintenance, education and advancement in life.

3. The competing claims of any other eligible persons or beneficiaries.

4. If the person is a category C or D eligible person, then that person will need to be able to establish that their relationship with the deceased was such that they ought naturally to have been a beneficiary under the Will. For example, a grandchild who gave up work to care for their ailing grandmother who subsequently died.

5. Any conduct an eligible person might have engaged in towards the deceased, against the deceased’s interests, which would

naturally not make you a beneficiary under the deceased’s Will (eg: if you engaged in fraud against the deceased).

6. The size of the estate (for example, an eligible person may have a very strong claim on the grounds of relationship and need, but if there is only $20,000.00 in the estate, then there is very little scope for a Court to order extensive provision).

Please note: This is a brief summary of the Law in NSW. Different laws and time limits apply in other States and Territories.

Our Family Provisions Act team of Warwick Gilbertson, Natalie Darcy and Adrian Corbould have the understanding and experience to listen carefully to your problem and explain things clearly. If you would like an assessment of your claim, just call one of our solicitors on (02) 4904 8000 – your starting point to peace of mind.

Disclaimer - This article is offered for general information purposes only. It is not offered as and does not constitute specific legal advice or opinion. The accuracy of the information is not guaranteed. You should not act or rely upon any of the information contained within this article without seeking the advice of a qualified solicitor who specialises in the particular area of expertise and jurisdiction that you require.