Throughout their lives most people decide to draft a will. If you are a spouse, partner, child or family member you usually will not see this document until the person has passed. Upon the reading of this will you may discover that you are not in the will at all or have been left a relatively small gift. You may feel like you have not received a proper share of the estate. But what can you do? Many people use the term “contesting the will”, but what does this really mean? Where do you even begin?

The first step in this process is to know what type of legal action you are taking. In NSW when you contest an estate the type of legal claim you are making is called a Family Provisions Claim. The number of these types of claims are increasing for many factors, although the biggest contender is in a situation of blended families and stepchildren.

So, what is a Family Provisions Claim?

In its essence a family provision claim is where a person makes an application to the Supreme Court of NSW for a larger share of an estate.

There are many things that contribute to successfully contesting an estate. But the main considerations that need to be taken on board are:

  1. You must be deemed an “eligible person”;
  2. That the claim is made with 12 months of the date of death of the deceased (unless there is some exceptional circumstances at play).
Who would be deemed an eligible person?

There are specific sections of the Succession Act 2006 (NSW) which apply when determining if you are an eligible person. The key people that can make a claim are:

  1. A wife or husband of the deceased;
  2. A de facto partner of the deceased;
  3. A former wife or husband of the deceased;
  4. A child of the deceased which includes step and adopted children;
  5. A person who is dependent (wholly or partly) of the deceased;
  6. A grandchild of the deceased;
  7. A person with whom the deceased was living in a close personal relationship as at the date of death.

If you believe that you may be a person who would be deemed eligible under the law, you should consider whether you wish to make a claim on the estate. Whilst there are other factors to consider when making a Family Provisions Claim, being an eligible person is the first major hurdle you must get past.

Written by Cameron Spanner.

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