Seeking a family provision order

Date: Sep 10, 2015

There are many instances in which it is prudent to engage the services of an experienced wills and estates lawyer, for example when seeking a family provision order.

Family provision orders allocate a portion of a deceased individual's property, whether the estate or notional estate, to an eligible person. This can be for maintenance, advancement in life or education. The primary aim of the order is to ensure the family or persons close to the deceased are adequately provided for if they have been left out of the original will.

Understanding family provision orders

These orders are made by the court under chapter 3 of the Succession Act 2006.

If the deceased passed away following 1 March 2009, then proceedings for one of these orders are made pursuant to the Succession Act 2009. Claimants are able to file a family provision order within 12 months of the date of death.

If a claim is made beyond the 12 month period, an order extending time for the application should be included in the claim for principle relief.

Who is able to file a family provision order?

You can file a claim for provision if you are eligible to do so. Eligibility means you were either married to or in a de? facto relationship with the deceased at the time they passed away, a former spouse or partner, or a child. Eligibility is described under section 57(1) of the Succession Act 2006.

In addition to the above eligible people, you can file if you were dependant on the deceased (either wholly or partly), and grandchild, or a household member living with the deceased. A person living in a close personal relationship at the time they passed is also able to make a claim.

What other considerations are there?

When seeking a family provision order, several matters may be considered by the court. These include whether or not the deceased had a moral obligation to provide for the applicant, both the financial resources and needs of the person laying the claim, and the nature (as well as the extent) or any obligation owed to the applicant.

In certain cases, a successful plaintiff will obtain an order that their costs be paid out of the estate.

To learn more about family provision orders in NSW, and family law, speak to expert and professional lawyers.