Making a claim against an estate

The relationships and bonds we forge over a lifetime can get complicated. More people are choosing not to get married, and some choose to have children even though they’re not interested in formally committing to each other. Other people will marry a few times, at various ages and stages of life, and as a result, blended families are becoming more common.

Family provision claims

Sometimes, when a person dies, their will doesn’t accurately reflect all the members of their family or specify their close relationships properly. For a variety of reasons, many people don’t update their wills regularly and sometimes a will hasn’t been properly executed in accordance with the law. Wills can also be declared invalid if there are grounds to suggest that the deceased was not ‘of sound mind and body’ when the will was made.

In these circumstances, it is possible to challenge the validity of the will.

Another type of claim against estates that is quite common is where a beneficiary believes they are entitled to a larger share of the deceased’s estate. This is called a family provision claim and to make this claim you need to make an application to the Supreme Court of New South Wales, but your claim must be filed within 12 months of the date of death.  

You can make a family provision claim pursuant to the Succession Act 2006 if you:

• are an ‘eligible person’ (as defined in section 57 of the Succession Act), and
• have been left out of a will, or
• did not receive what you thought you were entitled to receive.

Section 57 of the Succession provides that an ‘eligible person’ is:

• the wife or husband of the deceased
• a person who was living in a de facto relationship with the deceased (including same-sex couples)
• a child of the deceased (including an adopted child)
• a former wife or husband of the deceased
• a person who was, at any particular time, wholly or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
• a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.

Before making a family provision order, the court will consider the following:

• the relationship between the applicant and the deceased person
• any obligations or responsibilities owed by the deceased person to the applicant
• the value and location of the deceased person’s estate
• the financial circumstances of the applicant, including current and future needs
• whether the applicant has any physical, intellectual, or mental disabilities
• the applicant’s age
• any contribution made by the applicant to increase the value of the estate
• whether the deceased has provided for the applicant while they were alive 
• whether any other person is responsible for the support of the applicant
• the applicant’s character
• applicable customary laws if the deceased were Aboriginal or Torres Strait Islander
• any other claims on the estate
• any other matter the court may consider as relevant

Get legal advice

It is recommended that you get legal advice because the process can be complicated. You can contact us at Shoalhaven Lawyers for an initial consultation to assess your claim.

A will is the most important document you will make when you are alive and healthy, and it should be updated from time to time to reflect on changing life circumstances. We can also help you to write your will so in the event of your death your intentions are clear, and your loved ones are taken care of.