• The executor (or administrator if appointed by the court) acts for the estate and they are responsible for upholding the testator’s testamentary intentions but at the same time they must act reasonably, honestly and fairly (in good faith) in relation to a family provision claim. 
• As an executor you are required to assist the court by providing all relevant information and material to help the court to make a decision about whether or not to make an order in favour of the person making the claim. 
• Where possible the executor or administrator will be required to communicate with the claimant and negotiate a settlement. 
• If a settlement is not possible then the executor or administrator must represent the estate and beneficiaries during court proceedings. 
• Their ultimate job is to maintain the value of the estate for the benefit of all beneficiaries. This will potentially include the claimant.

• The NSW Supreme Court has the power to hear and decide matters relating to family provision claims. 
• Court rules, legislation and regulations prescribe the types of documents to be used and the procedure for claims. 
• Initiating documents (the legal documents that start the claim) must be filed in the court’s registry and served on the executor of the estate.

• Entitlement to make a family provision claim is based on the relationship the person making the claim had with the deceased person. 
• An eligible person is a person who is:

1. your spouse at the time of your death;
2. your de facto partner at the time of your death;
3. your child including an adopted child;
4. your former wife or husband;
5. your grandchildren but only if they have lived with you as part of your household and were dependent on you; 
6. step-children who have been dependent on you at some point as part of your household; or
7. a person who was living in a close personal relationship with you at the time of death. 

• However this is no guarantee that they will be awarded provision from the estate just because they make a claim. 
• The court will examine all the circumstances before deciding whether to award provision to the claimant. 
• These circumstances include:

1. the size of the estate;
2. the other beneficiaries and their need for provision;
3. the relationship between the claimant and deceased; and 
4. the claimant’s need for provision.

• The person named in the deceased person’s will as the executor should make an application to the Supreme Court for a grant of probate. 
• This is an official Supreme Court document that gives the executor the authority to deal with and distribute the deceased’s assets according to the terms of their will. 
• The executor must be mindful of any claims on the estate that may ultimately affect distribution of the assets.
• You can find more information about probate applications in our Wills & Succession topic.

• NSW allows up to 12 months from the date of death for a claim for family provision to be filed in court. 
• Courts generally only grant extensions to time limits if the person can show very good reasons for filing late.

• Yes. De facto partners are treated the same way as a spouse for the purpose of a family provision claim. 
• Factors a court will take into account in confirming a de facto relationship existed include:

1. the relationship’s duration; 
2. the nature and extent of the relationship; 
3. financial dependence; 
4. property ownership; and 
5. mutual commitment.

• Court annexed mediation is mediation that is ordered by the court. 
• Where possible the court requires the parties to attend mediation in an attempt to negotiate a settlement agreement. 
• If the parties settle the claim it means that the matter will not need to be heard before the court. 
• This is a substantial cost and time saving for everyone involved.

• Consent orders are court orders that are written because of an agreement reached between the parties. 
• They are then given to the court for approval. 
• They differ from court orders because they are consented to by the parties. 
• Court orders are made by the court after a court hearing. 
• Both consent orders (from a settlement agreement) and court orders (from a decision) are legally binding on the parties.

• Any provision awarded to the claimant must come from the estate assets. 
• The court may prescribe which part of the estate is to bear the burden of the provision. 
• For example the court may order that the provision for the claimant be paid from the testator’s bank accounts or that a particular property must be sold to provide the requisition funds.

• This depends on the court’s decision or the agreement made by the parties. 
• For example if the claimant is added as another beneficiary but the court does not prescribe where the money is to come from then this will have the effect of diluting each residuary beneficiary’s portion given to them in the will. 
• If the court orders that a particular asset is to pay for the claimant’s portion then the beneficiary who was to receive that gift under the will must either miss out or receive less. 
• The court will take the impact of this into consideration when making its decision.

Question

My guardian who has looked after me since my parents were killed in a car accident when I was 5 recently passed away without leaving a will. What happens to her estate?

Answer 

• Your guardian died ‘intestate.’ This means she died without a valid will or in this case no will at all. 
• The administration of her estate will be subject to the laws relating to intestacy in NSW. This legislation prescribes who will inherit her property. 
• A deceased person’s spouse and children are first in line to inherit their property. After that members of their wider family inherit. 
• If you do not fit into any of the categories who can inherit under the intestacy laws you may be eligible to make a family provision claim against your guardian’s estate especially if you were financially dependent on her at the time of her death. 
• You should obtain legal advice as soon as possible.

Question

My parents divorced when I was six and my father married again. He and his new wife had 2 more children who are both under 10. My father recently died in a work accident and he left his whole estate including a huge worker’s compensation payout to his new wife and children. My father used to pay child support to my Mum and I used to spend every school holidays with him until I turned 16. I am now 20 and at university. My father was helping with my uni fees and had promised to buy me a car when I graduated. I can’t understand why he didn’t leave me anything.

Answer 

• A testator’s child is eligible to make a family provision claim against their parent’s estate. 
• However you must first have regard to the fact that the deceased still has a spouse and young children. 
• The court will give a great deal of weight to the fact that your deceased parent has young children that they have not had the opportunity to provide for during their lifetime. 
• This will be compounded if your parent has substantially provided for you during their lifetime and the estate is not large. 
• Eligibility to make a claim may not be enough to give you provision from the estate.
• You should seek legal advice before making the decision to file a claim.

Question

I have been living with my de facto partner for more than 2½ years but she was still married to someone else. She recently passed away and I am worried that her former husband will get her property. What will happen?

Answer 

• The first question to be answered is whether your partner died with or without a valid will. 
• If she did not have a valid will then depending on the laws in your state or territory you and her former husband may each be entitled to a significant portion of her estate under the laws of intestacy.
• If your de facto partner left a valid will then her estate will be distributed in accordance with her instructions in the will. 
• However even if she left her entire estate to you her former husband may still be eligible to make a family provision claim against the estate.

Question

My father has passed away and since his death we have discovered that he had an illegitimate child while he was married to my mother. That child is now trying to make a claim against my father’s estate. Can they do this?

Answer 

• The definition of ‘child’ extends to include an illegitimate child for the purpose of a family provision claim. 
• The court will have regard to all the circumstances of the illegitimacy of the child including that child’s need for provision when determining if provision should be made for him or her from the estate.

Question

My step-brother is trying to make a claim against my father’s estate. My father wasn’t even his biological father and he hasn’t lived with our family for years. Can he do this?

Answer 

• For a step-child to make a family provision claim in NSW they must have been a member of the deceased’s household and wholly or partly dependent on the deceased at some point. 
• You should seek legal advice as soon as possible especially if you are an executor or administrator of your father’s estate.

Question

My grandmother recently passed away leaving her estate to my dad, aunt and uncle. I have lived with my grandmother since my mum remarried when I was 8 years old and Grandma has always looked after me. I don’t get on with my dad and I haven’t seen my mum in years. Grandma’s will was made before I came to live with her. She always said she meant to change it so that I would get her house but she never got around to it. What can I do?

Answer 

• In NSW you are entitled to make a family provision claim against the estate of your grandparent if you were financially dependent on them at some point.

Question

I am an executor of an estate and someone is planning to make a claim against the estate. I don’t think I can cope with this so can I withdraw as an executor? I have filed the application for probate but nothing from the estate has been distributed yet.

Answer 

• Once a person has acted in the position of an executor they usually cannot renounce their position. 
• Even someone who was not appointed an executor in the will but who acted in the role of an executor even for a short time is likely to be held personally liable.
• Unfortunately as you have already accepted your role by applying for probate you cannot renounce it now without obtaining an order from the Supreme Court on special grounds.
• Executors are personally liable to beneficiaries. 
• If an executor is responsible for diminishing the value of an estate by being careless or they do not follow the testator’s wishes in the will they may be required to personally reimburse the beneficiaries for any losses. 
• This personal liability commences from the time an executor accepts their position as the executor and continues to the time the assets of the estate are distributed to the beneficiaries. 
• We have acted for ‘reluctant executors’ in the past and are skilled at taking as much of the strain as possible off their shoulders.

Question

My 29 year old daughter from my first marriage has not spoken to me since she was 11 years old. If I leave my whole estate to my second wife and children will my daughter be able to claim any of it after I die?

Answer 

• Your daughter will need to show the court that she has a genuine need for provision from your estate and that you did not leave adequate provision for her proper maintenance, education and advancement in life. 
• Courts will take into account all the circumstances including:
• her age and financial position at the time of the application; 
• the relationship she had with you and any reasons for not keeping in contact with you;
• her health and future needs;
• any other beneficiaries;
• your dependants;
• the size of your estate; and 
• any provision made to her during your life.
• There is no way of ensuring that provision will not be made for her should she wish to make a claim. 
• If you decide to exclude her from your will you may want to leave a separate letter or statement explaining why you decided to exclude her. 
• The court is not bound to follow this but it may help them to understand your reasons for excluding her and it will be taken into account.

Question

My mother wrote two undated wills herself. She gave different gifts to different beneficiaries in each will. We are trying to work out which will to follow but some beneficiaries are threatening to contest our choice. Is this a family provision claim?

Answer 

• No, but it may lead to a family provision claim.
• In the first instance the court will have to determine which was your mother’s last will.
• After that is done, and depending what provision was made by your mother’s last will, one or more persons may choose to make a family provision claim.
• There are several types of challenges to an estate.
• Your first issue relates to which will should be ‘proved’ (accepted as your mother’s final will) for the grant of probate. 
• Other types of challenges may relate to:

1. the interpretation of particular clauses in the will such as where ambiguity exists; or 
2. the validity of the will such as whether the testator had testamentary capacity when the will was written. 

• A family provision claim deals with the exclusion of a beneficiary from the will or the adequacy of a gift left to a beneficiary under the will.

Question

I wanted to make a family provision claim when my mum died. My stepfather said he would look after me so she left everything to him but then he remarried a year later and kept all of mum’s estate. I was unemployed at the time and did not get legal advice that I may have a claim. Now I have been told I might, but it has been more than 12 months since she passed and I am out of time. Is there anything I can do?

Answer 

• Usually a court will only grant an extension where there are extraordinary circumstances. 
• You need to show reasons that are satisfactory to the court for not having made the claim within the time allowed by the family provision legislation. 
• One of the main factors the court will weigh up is whether the named beneficiaries will be unacceptably prejudiced by allowing you to make a late application. 
• The court will also take into consideration whether there has been any unfair conduct by any party in relation to the delay.