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Family provision claims

Commonly asked questions about family provision claims

The following individuals are entitled to make a family provision claim under the Succession Act 2006 (NSW).

  • Spouses – if you were the wife or husband of the person at the time of their death
  • De facto partners – if you were the de facto partner (including same sex partner) of the person and were living with them at the time of their death
  • Children – any child of the deceased, including adult children and adopted children
  • Former spouses
  • Grandchildren – if they can prove they were wholly or partly dependent upon the deceased person at any particular time
  • Other dependents – this includes any person (including, for example, a stepchild) who was a member of the deceased’s household at any particular time and was wholly or partly dependent on the deceased
  • People in close personal relationships who lived with deceased – a “close personal relationship” exists between two adults who live together but are not married or in a de facto relationship, and one or each of whom provides the other with domestic support and personal care. The adults may or may not be related by family. (This does not include the situation where one adult provides the other with care on behalf of someone else, or is being paid or rewarded to provide care.) Note that the person making the claim will need to prove the existence of the close personal relationship.

The time limit for making a claim in NSW is 12 months from the date of death of the deceased.

The court will take into consideration a number of different factors when assessing a claim, including:

  • The nature of the relationship between the applicant and the deceased
  • The applicant’s financial position and capacity to earn an income, as well as the financial position of each beneficiary of the will
  • How significant the provision is that the applicant already received from the deceased’s estate (if any) and whether this is enough to ensure his or her future financial security
  • The contribution the applicant has made (financial or non-financial) towards the deceased while they were alive, or after their death
  • The extent to which the deceased was maintaining the applicant prior to their death
  • Any evidence of the deceased’s testamentary intentions such as statements they made
  • Whether any other person is liable to support the applicant
  • The character and conduct of the applicant before and after the deceased’s death

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