Disputing a will through a family provision claim

Date: Aug 10, 2015

Emotions often run high when a loved one passes away. For friends and relatives, the grieving process can be made even more difficult when a dispute arises over the deceased's estate.

Unfortunately, in some cases, people have no other choice but to challenge a will in order to receive a share of the assets. Anyone who has been left out of the will or believes they are entitled to a larger proportion of the estate can therefore file a family provision claim. 

Individuals considering a claim should take the time to think over their decision carefully. Inheritance disputes can last years and create tension among the beneficiaries of the will, many of whom are also loved ones.

The cost of legal action may also be a factor, as the executor of the will often accrues legal fees if they defend a claim. The money is typically taken from the estate of the deceased, meaning even a successful family provision claim could significantly reduce the value of the assets available for distribution.

Assessing eligibility

Under the Succession Act 2006 (NSW), only certain people are eligible to pursue a family provision claim if they feel they haven't been adequately provided for in a will. These include the deceased's:

  • Spouse or de-facto partner
  • Children, including adopted and foster children
  • Former spouses
  • Grandchildren, if they were a member of the same household

The Act also allows people who were wholly or partly dependent on the deceased to make a claim, as well as anyone who was living in a "close personal relationship" with the person who passed away. For example, this could include a friend or carer.

Eligible persons have 12 months from their loved one's death to commence a family provision claim. The paperwork must be filed with the court's register within this time.

Mediation and settlements

In NSW, it's mandatory to enter mediation sessions in an effort to reach a mutually agreed settlement between the relevant parties. The benefits of mediation include the relative speed and low cost of taking this route.

However, when opposing sides are unable to resolve the issue, the case could end up in court, where a judge will make a decision based on the evidence provided.

This is usually the last resort for an inheritance dispute; when all other options have been exhausted. Claimants should therefore discuss what avenues are available to them with an experienced law firm to ensure they are fully informed when challenging a will.