When a family member or dependent believes they have not been properly provided for in the Will of a deceased person they may be entitled to start legal action, the starting point for any action in New South Wales is to determine if they are an ‘eligible person’ to make a family provision claim.
The Succession Act 2006 (NSW) provides that certain eligible persons may apply to the Supreme Court of New South Wales if they believe a Will (or the operation of intestacy laws) has not made adequate provision for them.
Being eligible to make a claim does not guarantee success. Once eligibility is established, the Court will consider whether the Will (or intestacy) failed to make adequate provision for the person’s proper maintenance, education or advancement in life and, if not, what provision should be made.
This article focuses on eligibility. The information is general only and does not constitute legal advice; if you are considering a claim, you should consult a lawyer experienced in estate litigation. Strict time limits apply for bringing a family provision claim in New South Wales, so getting prompt legal advice is essential to protect your position.
Eligibility criteria
The categories of eligible persons are described in section 57 of the Succession Act.
Category 1: Spouse
This category covers a person who was the wife or husband of the deceased person at the time of their death. This is often the most straightforward category, involving those with a close and legally recognised relationship with the deceased.
Category 2: De facto partner
A person who was living in a de facto relationship with the deceased at the time of their death may also be eligible. A de facto relationship can include same sex relationships, provided the legal criteria for a genuine de facto partnership are met.
Category 3: Children
A child of the deceased includes biological children and legally adopted children. In some circumstances, a person for whom the deceased had parental responsibility under a court order may also be able to claim.
Category 4: Former spouse
The law recognises that a moral or financial duty can sometimes persist after a marriage has ended, and a former wife or husband of the deceased may be an eligible person. However, a former spouse must also show that there are factors warranting the making of the application, such as ongoing financial reliance or other special circumstances. The Court will closely examine factors such as whether a family law property settlement was intended to be final, whether there were ongoing maintenance obligations, and whether the claimant remained financially dependent on the deceased in any way.
Category 5: Grandchildren and household members
This category is complex and requires the applicant to prove both dependency and a particular type of relationship with the deceased. To be eligible in this way, a person must:
- Have been wholly or partly dependent on the deceased person at any particular time; and
- Be either a grandchild of the deceased person or, at the relevant time, a member of the same household as the deceased.
While stepchildren are not listed as a separate category, they may be eligible under this dependency/household category if they lived with the deceased, were dependent on them, and the Court finds there are factors warranting the making of the application.
It is also possible that a parent, sibling, former de facto partner or other relative might fall into this category if they were dependent on the deceased and members of the same household at the relevant time. The test is very specific to the individual facts and can be contentious, so detailed evidence of the relationship and dependency is often required.
Category 6: Close personal relationship
This category involves certain persons who had a genuine, close connection with the deceased.
- Definition: A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
- What this means: A ‘close personal relationship’ is defined as two adults (not married or in a de facto relationship) living together (who may or may not be related by family) where one or each of them provides the other with domestic support and personal care. The relationship must not be on a commercial or professional basis (for example, not a paid employee or formal care worker).
A common example is an elderly person and an unpaid live-in carer providing domestic support and personal care. The Court will look closely at the nature of the arrangement to ensure it is not primarily for fee or reward.
The critical time limit
In New South Wales, an application for a family provision order must generally be filed within 12 months from the date of the deceased person’s death. This time limit is set out in section 58(2) of the Succession Act.
Acting within this period is very important because once the estate has been distributed, the practical options for a claimant may be significantly reduced.
What if I miss the deadline?
The Court has a discretion to allow a claim to be filed after the 12-month period, but this is not automatic and should not be assumed. The applicant must show sufficient cause for the delay. Relevant factors might include when they became aware of the death or the terms of the Will, the conduct of the parties, and how promptly they acted once they knew of their potential claim.
Key takeaways
- Eligibility is the first hurdle: You must fall within one of the eligible person categories in the Succession Act before the Court can consider whether further provision should be made for you.
- Dependency matters for some categories: For some categories, you must be able to demonstrate additional factors, as relevant, such as a level of financial dependency, domestic support or care.
- Time is critical: If you are considering a claim, you should obtain legal advice well before the 12-month deadline expires to ensure you understand your rights and options.
This article provides general information only and is not a substitute for specific legal advice about your situation. If you or someone you know wants more information or needs help or advice, please call (02) 4382 2200 or email [email protected].