Some pass away leaving a will with instructions concerning the distribution of their estate, others die intestate, with their estate to be distributed in accordance with the Statutory Order.
In both cases there are circumstances where the law allows limited classes of people to claim a share of your estate, greater than that they would have received under your will or under the Statutory Order, these are referred to as Family Provision Claims.
Who has claim to my estate?
The classes of people who may be eligible to make a claim are your current or previous partner (married or de facto), your children, a person who you live with and provides you with domestic support and personal care, a person who has been dependant on you and is a grandchild or a member of your household during your lifetime.
What basis do others have claim to my estate?
The basis on which these classes of people may make a claim against your estate, is that in all the circumstances sufficient provision has not been made from your estate for that persons maintenance, education or advancement in life.
How does a court assess a claim by an eligible person?
The circumstances which the Court looks at were assessing a claim by an eligible person include the nature of the relationship between the claimant and yourself during your lifetime, the size of your estate, the financial resources and earning capacity of the claimant present and future, any physical, mental or intellectual disability of the claimant, the age of the claimant, the contribution that the claimant has made towards your purchase and maintenance of property and the conduct of the claimant towards you during your lifetime and their conduct after your death.
How long does a person have to make a claim?
Generally, a claimant has a period of 12 months from the date of your death to bring a claim for provision.
Are others notified about the claim?
When a claim is made by one claimant, notice is then given by the estate to other people eligible to make a claim on the estate, giving those people to opportunity to make a claim of their own.
For example, if you passed away leaving three children and a de facto partner and one child makes a claim then the two other children and your de facto partner would be given the opportunity to make a claim of their own.
How does the claim proceed?
Once the number of claimants are established, the Executors or Administrators on behalf of the estate and the claimants disclosed their financial position to each other and the Court, the Court will generally order the parties attend mediation in an attempt to settle the claim, without the substantial expense of having the claim determined by the NSW Supreme Court following a hearing before a judge.