It has long been established that a person has freedom to make a Will to dispose of their property how they see fit. However, the Family Provision Act in the 1980s introduced the ability for a Family Provision claim to be made.
This includes where a beneficiary (or excluded) alleges that they were not fairly provided for, or where it may be alleged that the last will is not valid for some reason.
“An eligible person” can make a claim whether the deceased made a Will or if they died without a Will. The NSW Legislation provides for a category of persons who are able to make a family provision claim described as an “eligible person”.
The categories are as follows:
1. A husband or wife of the deceased at the time of death
2. A defacto spouse of the deceased at the time of death
3. A child of the deceased
4. A child of the defacto or domestic relationship to which the deceased was a party at the time of death.
5. A former husband or wife of the deceased
6. A grandchild who was at any time wholly or partially dependent upon the deceased
7. A person who was at any time wholly or partially dependent upon the deceased and was at any time a member of the same household as the deceased.
8. A person who was in a close personal relationship with the deceased at the time of death
It is important to note that a Family Provision claim must be made within 12 months of the date of death.
It is important to seek legal advice as early as possible Rebecca Campbell of our Litigation team specialises in Family provision claims.