To be able to contest a will in New South Wales, you must comply with the terms of the Succession Act 2006. This legislation governs the ability for people who are eligible persons who are seeking a share or a greater share of the deceased’s estate.
The first step in commencing a family provision claim in NSW is to determine if you are an eligible person. The legislation states that eligible persons can include the deceased’s spouse, child, former spouse, de facto partner, or a person who was dependent on the deceased at the time of their death.
Once you have determined that you are an eligible person, you must file a family provision claim in the Supreme Court of NSW. This claim can be difficult for the average person, so we recommend that at this time you seek legal advice. The claim must be made within 12 months of the deceased’s death, although the court may allow an extension in certain circumstances.
The family provision claim must include details of the deceased’s assets and liabilities, your relationship with the deceased, and your financial circumstances. You must also explain why you believe you have not been adequately provided for in the deceased’s will or under the intestacy laws.
After you file the family provision claim, the court will set a date for a mediation and a hearing. The purpose of the mediation is for the parties to try and resolve the dispute without the need for a hearing. This allows for the parties to have some say in the result of the claim. However, if the parties cannot agree at mediation the matter will have to go to a hearing.
At the hearing, the court will consider the evidence presented by both parties and make a decision on the appropriate provision to be made for the claimant. In addition, it is important to note that family provision claims can have a significant impact on the distribution of the deceased’s estate and may result in legal costs for all parties involved.
In summary, to commence a family provision claim in NSW, you must determine your eligibility as an eligible person, file a claim in the Supreme Court of NSW, provide details of the deceased’s assets and liabilities, and attend a mediation and hearing. It is recommended to seek legal advice before proceeding with a family provision claim to ensure the best possible outcome.
In the event that you require assistance with a Family Provisions Claim, please feel free to contact one of our offices located at Penrith, Parramatta, Richmond and Sydney.
Written by Cameron Spanner.
