Deaths on or After 1 March 2009 - Summary of the Succession Act NSW 2006

Legislation in New South Wales gives certain people a right to claim against an estate if left out, or not adequately provided for.

The law that applies to your situation will depend on whether the death occurred before, on or after 1 March 2009.

If the death occurred before 1 March 2009, the applicable law is the Family Provision Act.

If the death occurred on or after 1 March 2009, the applicable law is the Succession Act. The most significant difference between the laws is the time limit in which to bring a claim, which we will describe later in this article. Otherwise the laws are quite similar.

Under the Succession Act, the law provides that you will only be entitled to make a claim for provision if you are an “eligible person”. An “eligible person” includes the following:

a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death; or

b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death; or

c) a child of the deceased person or, if the deceased person was a party to a domestic relationship at the time of death, a person who is a child of that relationship; or

d) A former wife or husband of the deceased person; or

e) A person:

i) who was wholly or partly dependent upon the deceased person at any particular time, and

ii) who is a grandchild of the deceased person or was at that particular time or at any other time a member of a household of which the deceased person was also a member.

f) a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

If you are not an eligible person, then you have no entitlement.

What factors are taken into account?

If you are an eligible person, the mere fact you are an eligible person does not mean you have 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 proper maintenance, education and advancement in life of the applicant.

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

3. The nature and duration of the relationship between the deceased and the applicant.

4. The financial resources and earning capacity of the applicant.

5. If the applicant is cohabiting with another person, the financial circumstances of that other person.

6. Any contribution (whether financial or otherwise) to the assets of the deceased, or the welfare of the deceased person.

7. Any provision made for the applicant by the deceased person during the deceased’s lifetime.

8. Any relevant Aboriginal or Torres Strait Islander customary law.

9. Certain categories of eligible persons, grandchildren, 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 an ailing grandparent who subsequently died.

10. 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).

11. 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 provision).

Time Limitations

Where the deceased person dies before the commencement of the new Act on 1 March 2009, the application/claim must be lodged with the Court within 18 months from the date of death, being still relevant to the Family Provision Act.

Where the deceased person dies on or after the commencement of the Succession Act on 1 March 2009, then the application/claim must be lodged with the Court within 12 months from the date of death. In some special circumstances, it is possible to obtain an extension of the time limit. Special circumstances might include that a person did not realise that they had to make a claim within the time period that applies.

Please note these time limits apply only where the assets of the estate are in New South Wales. If any property of the estate is held in other states or other countries, then different laws and different time limits will apply. Therefore, if the estate has assets in another State or Country, you should urgently seek legal advice from a solicitor in that State or Country. You should do so without delay because strict time limits are likely to apply.

Regardless of which time limit applies we recommend that our legal advice be sought as soon as possible after the death, in order to ensure your rights are protected.

Notional Estate

In some circumstances an applicant may be able to claim upon assets which do not strictly fall into the deceased's estate.

Such assets are known as “notional estate”. Some examples of situations where a claimant may be able to make a claim on an asset even though it does not form part of the deceased's estate are:

a) Where the deceased person gave an asset away, or sold it to someone for less than its value, within three years of the death;

b) Where a deceased person had superannuation or life insurance which does not fall into the estate

c) Where a deceased person held an asset (such as a house or bank account) with another person as a joint tenant.

d) Where a deceased person made a loan to someone and forgave the loan on their death, or within three years of their death

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 1800 763 224 – 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.