Angry dissatisfied couple arguing meeting lawyer or manager having legal fight about a will.

Family Provision Claims: The Big Scary Monster

Karina Penfold, ||

A family provision claim is a claim brought by an “eligible person” (as defined under section 57 of the Succession Act 2006 (NSW) (‘the Act’), either for provision from the estate of the deceased in circumstances where the claimant was left out all together or for further provision in circumstances where the claimant was left something but this amount is arguably inadequate.

I find these types of claims are perceived by clients to be the “big scary monster” and I often get asked what the point of making a Will is, if it can just be challenged.

During the year 2021, almost 900 family provision applications were filed with the Supreme Court of NSW. Some of the lessons we learnt from these were as follows:

  1. A claim is not guaranteed to be successful. Several applications in 2021 (and 2022) were unsuccessful.
  2. The definitions of ‘eligible person’ and ‘close personal relationship’ under the Act have been narrowed. To satisfy the definition of an ‘eligible person’ with a close personal relationship with the deceased (other than by marriage or a de facto relationship), the claimant and deceased must have lived together in the same residence, not necessarily full time but be more than frequent visits [ i ].
  3. Practitioners lacked preparation and were not completely aware of the specifics for the provisions their client were seeking. A claim for provision or further provision from an estate is based on the claimant’s needs. Some practitioners had submitted a ‘wish list’ for their client as opposed to a ‘needs report’. These ‘wish lists’ lacked evidence to support why their client should receive a provision. It is simply not good enough to include claims for overpriced accommodation in sought-after suburbs, or alleging that the accommodation must be a house, and not an apartment which is likely to be cheaper, with no other explanation.
  4. An adverse costs order is always a risk when litigating. If an application is dismissed, the unsuccessful claimant will generally see themselves having to pay costs (but the practicalities of recovering those funds from the unsuccessful claimant require separate consideration). Litigants should not merely file claims expecting their legal costs to be paid from the estate in full, or at all.
  5. Freedom of Testamentary Intention. This is the freedom awarded to every person who has the adequate testamentary capacity, to decide what happens to their estate when they die. Whilst the Court has a role and discretion in determining family provision claims, the Court will give great weight to the testator’s wishes and will only intervene in circumstances where the deceased testator failed to make adequate and proper provision for the claimant. It is not the Court’s role to reward the applicant, or to consider notions of fairness or equity.

Although the Act allows for a Will to be challenged, it is important to keep in mind that not every Will is going to be contested and that a properly considered and drafted Will would help minimise the risk of a claim or avoid a claim all together.

Reach out to our Wills & Succession Team if you need assistance with putting your estate plan in place, or if you find yourself in a middle of dispute to obtain exert advice and assistance in resolving the dispute in the most time and cost effective manner.

[ i ] Yesilhat v Calokerinos [2021] NSWCA 110.

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