10
Feb
2025

Understanding Family Provision Claims in New South Wales

A family provision claim in New South Wales (NSW) is a legal process that allows an individual to seek a share of a deceased person’s estate, even if they have been left out of the will or have not been adequately provided for. The purpose of this claim is to ensure that people who were dependent on the deceased or had a close relationship with them are not left in financial hardship after their death.

Who Can Make a Family Provision Claim?

Not everyone can make a family provision claim. Under the Succession Act 2006 (NSW), the law allows certain people to apply for a share of the estate. These are typically people who were financially dependent on the deceased or had a significant personal relationship with them. Eligible persons include:

• Spouses (including de facto partners)
• Children of the deceased
• Former spouses (under specific circumstances)
• Dependants (such as someone who relied on the deceased for financial support, like a stepchild or a dependent relative)
• People who were living with the deceased in a close personal relationship, even if they weren’t financially dependent

In order to succeed in a family provision claim, the applicant must prove that the deceased did not make adequate provision for their maintenance, education, or support in their will. The court will consider factors such as the applicant’s financial situation, the size and nature of the deceased’s estate, the deceased’s intentions (as expressed in the will), and any contributions the applicant made to the deceased’s welfare.

Time Limits for Family Provision Claims

One of the most critical aspects of a family provision claim is the time limit. If you are considering making a family provision claim, it is essential to be aware of the strict deadlines involved.

The time limit for making a family provision claim in NSW is 12 months from the date of the deceased’s death. This means that an application must be filed with the court within one year of the person’s passing. If the claim is not lodged within this timeframe, the applicant will generally lose the right to make a claim, unless they can establish very specific and unusual circumstances that justify extending the time limit.

In some cases, the court can grant an extension of time for making a claim, but this is not automatic. To seek an extension, the applicant must demonstrate to the court that there is a valid reason why they missed the deadline. These reasons can include issues like not being informed of the death, not being aware of the will, or other exceptional circumstances that prevented the person from filing their claim on time.

However, it’s important to understand that the court has the discretion to decide whether an extension should be granted, and these requests are not always successful. Therefore, it is advisable to act promptly if you are thinking about making a claim.

Conclusion

Family provision claims are a valuable tool for ensuring that people who are dependent on or close to a deceased individual are not left financially disadvantaged after their passing. However, the time limits involved in these claims are strict, and failure to file within 12 months from the date of death can result in the loss of the right to claim. For anyone considering a family provision claim in NSW, seeking legal advice as soon as possible is highly recommended to ensure all deadlines are met and that their claim is properly handled.

Disclaimer

The content of the Anderson Boemi Lawyers website is provided for information purposes only. The contents of this website do not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters. If you have a particular matter you need legal advice for, or you have any questions about our disclaimer please contact our office on (02) 9653 9466.