Family estate and provision matters arise if adequate provision has not been made for members of the family of a deceased person from the estate of the deceased person (or a person who meets certain criteria as listed below), the Court can make an order for provision out of the estate of the deceased person that it thinks appropriate for the maintenance, education or advancement in life of that person. In making such an order, the Court will consider the relationship between the eligible person and the deceased.
The relevant legislation is the Succession Act 2006 (NSW) which came into effect on 1 March 2009 (and replaced the Family Provision Act 1982 (NSW). The Family Provision Act 1982 will apply to the estates of people who died before 1 March 2009.
A person eligible to make a claim under the Succession Act 2006 includes a spouse, former spouse, de facto partner, child of the deceased and from 1 March 2009, subject to certain conditions, a person living in a close personal relationship with the deceased at the time of the deceased’s death.
It is possible to enter into a Deed of Release with your former spouse or de facto partner which, once approved by the Court, will operate to prevent that former spouse or de facto partner from being able to make a claim against your estate.