If you are an “eligible person” you may be able to make a claim on an estate if you are not adequately provided for in the Will (or under the “intestacy rules” where there is no will).
Time to commence proceedings
In NSW proceedings for further financial provision under the Succession Act must be commenced within 12 months of the date of death. Other states may have different provisions.
The Court has power in exceptional circumstances to give leave for a claim to be made out of time if sufficient cause is shown. An extension of time will not be automatically granted, even where there is no great prejudice to any other affected party.
If you want to make an application for further provision under a deceased person’s estate, there are generally three broad aspects that we need to deal with:
- showing that you are an “eligible person” (examples of “eligible persons” would be a child, spouse or former spouse, defacto or a close personal relationship).
- showing the nature and extent of your relationship with the deceased person, any contributions made to the deceased’s assets.
- showing your needs (mainly financial need) in the context of any competing claims by other eligible persons. What are your financial circumstances? What is the size of the estate?
The law and the approach of the Courts is always evolving. It is necessary to obtain specific legal advice in your particular circumstances. We specialise in such claims and can assist you in the whole process.
Relationship with the deceased
In an ideal situation, you would have a good relationship with the deceased. However between parents and children, relationships can become strained or break down completely. We need to consider all the circumstances. Simply because the relationship has broken down or become strained does not necessarily mean that the deceased did not have a duty to make you a proper provision in their will.
Your financial needs
Financial “need” is usually the main aspect of a case for further provision under the Succession Act. You need to show from your financial circumstances (and the financial circumstances of other competing eligible persons and the size of the estate) that you have a “need” for further provision in order to succeed.
Taking into account assets disposed of by the deceased prior to their death
In New South Wales, unlike some other jurisdictions, notional estate provisions exist to enable, in some cases, to make a claim on property transferred or disposed of prior the death of the deceased (ie have it treated as part of the estate).
The power be used to try and “get around” transfers of property made by a deceased person prior to their death made with the intention of stopping an eligible person/dependent from making of proper provision for eligible persons.
Under these provisions a claim might also be made on various assets that are not part of the deceased’s estate, such as:
- their superannuation;
- real estate they held as joint tenants.
What we do for you
- Make the application to the Court with supporting affidavits (or if acting for the estate, filing affidavits in reply); and
- Conduct negotiations and mediation to try and achieve a fair, timely and cost-effective settlement for you; and
- Arrange a barrister to advise you and appear at any hearing.