I've been left out of a Will, am I eligible to make a claim on the Estate?
Despite people having the freedom to direct who they leave their assets to when they die in their Will, there are laws in New South Wales allowing “eligible persons” to contest a Will if they have been either left out or not adequately provided for in the Will. This is done by filing a Family Provision claim against the estate of the deceased person, which is an application to the Supreme Court seeking orders to vary the terms of the Will to provide more to the claimant than they would have otherwise received under the Will.
In New South Wales, the law provides that only “eligible persons” as defined by the Succession Act 2006 (NSW) can bring a Family Provision claim against a deceased person’s estate. Eligible persons include:
- A wife or husband of the deceased person;
- A person who was living in a de facto relationship with the deceased person at the time of death;
- A child of the deceased person (including an adopted child, but not including a step-child);
- A former wife or husband of the deceased person;
- A person who:
- was at any particular time, wholly or partly dependant on the deceased person, and
- who is a grandchild of the deceased person or was at any particular time a member of the household of which the deceased person was a member;
- A person who the deceased person was living in a close personal relationship with at the time of death.
A “close personal relationship” is a relationship (other than a marriage or de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care and is not paid or employed to provide such support and care.
A step-child, parent or sibling are not defined as eligible persons under the law in NSW. Depending on the circumstances of each case, these persons may be eligible if at any time they lived with the deceased and were dependent upon the deceased.