The Family Provision Claim Process in NSW … are you eligible?

The death of a loved one brings sorrow, and sometimes disappointment to expectant beneficiaries who may be left without adequate provision from the estate of a deceased person.  For over 100 years, through evolving legislative provisions, eligible persons have been entitled to make a claim on the estate of a deceased person if they have been left without adequate provision.

Knowing the rights and entitlements of succession law in NSW is important, and advice should be sought as claims for family provision in NSW must be commenced within 12 months of the death of the deceased. All parties (both plaintiffs and defendants) in family provision claims are encouraged to seek legal representation.

There were 880 family provision claims filed in the Supreme Court of NSW in 2020.

Unless resolved by agreement of the parties prior to a hearing, all claims for family provision are determined by a Judge of the Supreme Court.

What is a family provision claim?

Family provision claims in NSW by eligible persons left without adequate provision for his or her proper maintenance, education or advancement in life are entitled to commence proceedings in the Supreme Court of NSW in accordance with the provisions set out in Chapter 3 Succession Act 2006 (NSW).

Who is eligible to make a family provision claim?

Persons eligible to make a claim for family provision are set out in s57 Succession Act 2006 (NSW):

1. A wife or husband of deceased at time of deceased’s death
2. A de facto partner of the deceased at time of deceased’s death
3. A child of deceased
4. A former wife or husband AND factors warrant a claim
5. A person who was at any particular time dependent on the deceased person AND who is a grandchild of the deceased, or was a member of the household of which the deceased person was a member AND factors warrant a claim
6. A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death AND factors warrant a claim.

What considerations will the Court make?

Before making a determination as to whether an eligible person has been left without adequate provision for his or her proper maintenance, education or advancement in life, the Court may consider the 16 matters listed in s60 Succession Act 2006 (NSW) including the financial, material or other circumstances of the claimant; the size of the deceased’s estate; and any other competing claims on the estate.

Process of making a family provision claim

Commencing a claim for family provision

A claim for family provision is commenced by filing a Summons and affidavit evidence in the Supreme Court of NSW on payment of the filing fee of $1,169.00.

Responding to a claim for family provision

The executor or administrator of the estate named in the Summons is responsible to defend a claim for family provision and is also required to file documents in the Supreme Court of NSW.  The duties of an executor or administrator of the estate, served with a Summons seeking family provision include upholding the provisions of the deceased’s last will or alternatively, the interests of the beneficiaries entitled on intestacy, whilst having regard to compromising any claim on the estate for family provision.

Procedure for family provision claims

The Supreme Court of NSW is bound by the overriding purpose to facilitate the just, quick, and cheap resolution of the real issues in the proceedings as set out in s56 Civil Procedure Act 2006 (NSW).  Guidelines for the procedure of family provision claims are set out in the Supreme Court’s Practice Note SC Eq 7.

Alternate dispute resolution

All claims for family provision in the Supreme Court of NSW are referred to alternate dispute resolution which may be in the form of a settlement conference, Court annexed mediation, or otherwise by a private mediator.

The majority of claims for family provision are resolved without recourse to determination at a hearing by a Judge of the Supreme Court of NSW.

Final determination at a hearing

Claims for family provision which fail to settle through alternate dispute resolution will be listed for a hearing before a Judge of the Supreme Court of NSW after all evidence has been filed and serve, and after payment of a hearing allocation fee of $2,333.00. 

Court determination of claims for family provision is unlikely to take less than 12 months from date of commencing proceedings.

At a hearing of a family provision claim, a Judge of the Supreme Court will read all affidavit evidence filed by the parties, and the deponents of affidavits may be subject to cross examination.  At the conclusion of the evidence, the legal representatives for the plaintiff and defendant are entitled to make submissions before the Judge who considers all the evidence placed before the Court and assesses the credibility of the witnesses.

It is important to be aware that each claim for family provision is unique as to the facts and circumstances which are relevant. It is also important to be aware that the Supreme Court of NSW has discretionary jurisdiction to make orders for family provision, that is, the Court may make orders for family provision if an eligible applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life. Turnbull Hill Lawyers are trusted Wills Dispute lawyers, experienced in contested estate litigation in New South Wales. We welcome any enquiries, please contact us for an obligation-free discussion.