Family Estate & Provision Claim

by | Mar 12, 2024

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Family Estate & Provision Claim

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 is 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). The Succession Act 2006 (NSW) replaced the Family Provision Act 1982. The former act 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, a person who was wholly or partly dependent on that person and was either the grandchild or a member of that person’s household, and 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 Supreme Court of NSW, will operate to prevent that former spouse or de facto partner from being able to make a claim against your estate.

Common questions about Family Estate & Provision

Do I need to change my will if we divorce or separate?
• As soon as you separate you should review your Will. If you do not have a Will we suggest you make one as soon as possible.

• Once you are divorced, any reference to your former spouse, whether as an executor or beneficiary, is automatically void. It is therefore advisable to update your Will, or create a new one, to ensure that a valid Will is in place and to protect your Estate.

• However, if you are only separated, your Will does not automatically become invalid and your former partner may still have an entitlement. In these circumstances, it is advisable to ensure that your Will reflects your current wishes.

• It is very important to have a Will which reflects your current intentions, such as who is to receive the assets of your Estate and who is entrusted with the role of administering your Estate. If you do not have a Will, we recommend that you speak with a Wills and Probate specialist. Please contact us if you would like us to make recommendations.

Family Estate & Provision Claim

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