When a close family member such as a spouse or parent passes away, you will inevitably be left to deal with the division of their assets. Whilst it is helpful when there is a will in place to help you with this trying task, it can be made all the more difficult in cases where the will is not as you might have expected. Unfortunately, it is often the case that certain family members are unexpectedly left off of a will or assigned significantly smaller portions than they had anticipated. This can be especially unfair in cases where one sibling has been assigned a larger portion than another for unknown reasons, or when a partner has been left to care for the family without sufficient provision. Luckily, in such cases there may be grounds to make a family provision claim.
What Does a Family Provision Claim Involve?
A family provision claim in NSW involves making an application to the Supreme Court to dispute the will of the deceased and gain adequate provision from their estate. Claims can be made in cases where an individual was left out of the will entirely or when they did not receive what they believe to be a fair share. To make such a claim, you must be categorised as an “eligible person”. This refers only to previous or current spouses, de facto partners or those with a close personal relationship who were living with the deceased, children, and dependent parties such as adopted children or grandchildren who were living with the deceased. Claims must be made within one year of the death in order to be considered.
What Factors Come into Play?
When a court is making a decision regarding a case, a number of factors will be taken into consideration. The relationship of the claimant to the deceased will be the key consideration, along with whether the deceased was obligated to or responsible for the applicant in any way. The financial circumstances of the applicant will be assessed, including how reliant they were on the deceased, and whether there is anyone else who should be responsible for their continued maintenance, such as another parent or partner. They will ask the applicant to provide proof of their current and future financial needs so that their situation can be assessed accordingly. Furthermore, special consideration may be given to an applicant who is very young or who has physical or mental disabilities that may impair their ability to care for themselves. The value of the deceased’s estate will also come into play, along with anything the claimant may have contributed towards increasing its value.
Making a Claim
In order to make a solid claim, it is essential to seek the advice of an experienced lawyer. They will be able to offer the expertise necessary to assess the validity of your case and gather the appropriate evidence in order to meet success. With the right lawyer on board, your chances of winning your court case will be significantly increased.