Family Provision Orders & Wills

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The information and mis-information surrounding Family Provision Orders under the Succession Act 2006 (NSW) are a cause for concern for many.  Some are indignant at the lack of testamentary freedom while others argue that scorned beneficiaries are left to the burden of the community and welfare.

Eligibility

Under the current legislation in NSW, there are 6 categories of “eligible persons” who can make a family provision claim.  They are:

  1. A wife or husband;
  2. A de-facto spouse;
  3. Children, regardless of age;
  4. A former wife or husband;
  5. A person who was a dependent and a grandchild or a member of the deceased person’s household at any time;
  6. A person who was living in a “close personal relationship” with the deceased person.

How is the claim decided?

The key provision in the Succession Act is section 59(1), which states that:

“at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made had not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.”

Adequate Provision for the Proper Maintenance, Education and Advancement in Life

When considering whether adequate provision has been made, the Court will have regard to what is considered to be right and proper according to contemporary accepted community standards.

Other factors within the Succession Act

There are other factors taken into consideration by the Court when determining the claim made by an eligible person:-

  • The nature and duration of the relationship between the applicant and the deceased person;
  • The obligations or responsibility owed by the deceased person to the applicant and any other beneficiaries;
  • The nature and extent of the Estate;
  • The financial resources and needs of the applicant and other beneficiaries;
  • The financial circumstances of the person the applicant is cohabiting with;
  • The disability of the applicant and other beneficiaries;
  • The age of the applicant;
  • The contribution of the applicant to the Estate or the welfare of the deceased person or the deceased person’s family;
  • Any provision made for the applicant by the deceased person;
  • Any evidence of testamentary intentions of the deceased person;
  • Whether the applicant was dependant on the deceased person and to what extent and on what basis;
  • Is there any other person liable to support the applicant;
  • The character and conduct of the applicant;
  • The conduct of any other person before and after the date of the death of the deceased person;
  • Any relevant Aboriginal or Torres Strait Islander customary law;
  • Any other matter the Court considers relevant;
  • The time the application is made, usually to be within 12 months from date of death.

Making Your Will

Whilst there are no obligatory shares to an Estate under NSW law, the Court does have substantial power to make orders for provision out of an Estate in favour of a relatively wide group of people. The Court’s powers place significant restrictions on an individual’s freedom to dispose of their assets just as they want to.  This power is enlarged to an even greater extent by the provisions of a Notional Estate Order in Part 3.3 of the Succession Act.

However, it is interesting to note that in a matter decided in the NSW Supreme Court, Andrew v Andrew [2011] NSWSC 115, the Court listed its limitations as follows:

  • The statutory jurisdiction is a ‘limited disturbance of the right of testamentary disposition
  • It is not appropriate to endeavour to achieve a ‘fair’ disposition of the Estate — it is not part of the Court’s role to achieve some kind of equity between the various claimants;
  • The Court’s role is not to reward or to distribute according to notions of fairness and equity;
  • The Court’s role goes no further than the making of ‘adequate’ provision for the ‘proper’ maintenance, education and advancement in life of an applicant;
  • The Court’s job is not to rewrite the testator’s will, only to ensure that adequate provision has been made for proper maintenance, etc.;
  • The Court cannot transgress unnecessarily upon the deceased’s freedom of testation;
  • The nature and content of what is adequate provision for proper maintenance etc is not fixed or static and reflects contemporary accepted community standards.

As a result, careful consideration must be given to the potential claims of all “eligible persons” to an Estate and whether “adequate provision” has been made when preparing a Will.

 

If you would like to discuss matters relating to your Will or family provision orders, please contact our office on (02) 8076 4539 to speak with a legal practitioner.

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. The publication reflects the law at the date the publication was written, which may differ at the date the publication is being read. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.

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2 Responses to "Family Provision Orders & Wills"

  1. Reese Carman

    My wife and I need to get wills drawn up. We have nothing at the moment

    • admin

      Dear Reese, Please call or email the office and we can organise a time to discuss your Wills.

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