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What is a Family Provision Claim?

by Angela Backhouse

Protecting your wealth from legal challenges to your deceased estate is an important consideration when undertaking the estate planning process. In particular, minimising the risk of a challenge by a disgruntled family member under family provision legislation is essential for ensuring your estate is distributed according to your wishes.

Generally, a person may leave their assets to whomever they wish.  However, the law recognises that there are those who relied on the deceased for support who can sometimes be unfairly left out of the deceased’s Will and are therefore able to make a claim so that their needs are adequately provided for.

Under the Family Provision Act 1968 (NSW), only persons who qualify as eligible persons under the Act may apply to the Court. There are seven categories of eligible persons, namely:

  • The wife or husband of the deceased;
  • A person in a de facto relationship with the deceased;
  • A child of the deceased;
  • Former wives and husbands of the deceased or former de facto partners of the deceased, who were receiving or entitled to receive maintenance from the deceased when they died;
  • A grandchild of the deceased, in certain circumstances;
  • A step-child of the deceased in certain circumstances; and
  • A parent of the deceased.

A claim for family provision can be made by eligible applicants as defined by the relevant legislation in each State or Territory. These applicants are typically disgruntled family members, such as husbands, wives, defacto’s, and children, who have received either insufficient or no benefit under a Will or intestacy laws. Ultimately, family provision claims are founded on the relationship between the applicant and the deceased, and the financial needs of the applicant.

A successful family provision claim can have the effect of interfering with the intentions of the deceased under their Will, and will require an alternative distribution of assets of the estate to the successful applicant.

Your Will can be considered as a statement about your personal relationships, and should be regarded as a family planning document designed to maintain family harmony. Although it is not possible to completely prevent a family provision claim from being made, a properly drafted Will and associated documents can alleviate some risks a family provision claim.

It is also important to remember that a Will is not just an instrument for distributing estate assets – it is also an instrument for nominating executors to represent your final testamentary wishes, and for nominating guardians for your children.

Blackhouse legal logoAt Backhouse Legal we have experienced staff to assist you with your estate planning matters.  If you would like more information or if you need assistance or advice, call us on 02 6280 8899 or email office@backhouselegal.com.au

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