Family Law and Divorce

The arena of contested wills often opens up complex discussions, particularly when it comes to family provision claims. In New South Wales (NSW), understanding these claims is crucial for anyone involved in estate disputes or planning. This guide delves into the intricacies of family provision in contested wills, providing clarity on this important aspect of estate law.

What is Family Provision?

Family provision is a legal recourse designed to ensure that adequate provision is made from a deceased person’s estate for the maintenance, education, or advancement in life of eligible individuals. These claims are particularly relevant in cases where a will does not adequately provide for certain family members or dependents, raising questions of fairness and rightful entitlements.

Legal Framework in NSW

In NSW, the Family Provision Act 1982 sets the foundation for family provision claims. Under this legislation, certain individuals, including

• the wife or husband of the deceased
• a person who was living in a de facto relationship with the deceased (including same-sex couples)
• a child of the deceased (including an adopted child)
• a former wife or husband of the deceased (including same-sex couples)
• a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
• a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.

are entitled to contest a will if they believe they have not been properly provided for. The law aims to balance the testamentary wishes of the deceased with the needs of the claimants.

Grounds for Making a Family Provision Claim

To pursue a family provision claim, claimants must demonstrate their need for further provision from the estate. Courts consider several factors: the nature and duration of their relationship with the deceased, their current financial circumstances, contributions made to the deceased’s estate or welfare, and the overall size and nature of the estate. These claims necessitate a thorough examination of both the claimant’s needs and the intentions of the deceased.

The Process of Making a Family Provision Claim

Initiating a family provision claim involves legal proceedings, where the claimant must file their claim within 12 months of the death of the testator in NSW. Given the time-sensitive nature of these claims, seeking prompt legal advice is essential. The process often involves mediation and, if unresolved, a court hearing.

Case Studies and Legal Precedents

Several landmark cases in NSW have shaped the understanding of family provision. For example, the case of Singer v Berghouse [1994] (HCA 40) highlighted the importance of moral duty and a spouse’s financial circumstances, whereas Vigolo v Bostin [2005] (HCA 11) added that disentitlement due to a strained relationship with the deceased could still be considered. These cases underscore the complexity and nuances involved in family provision claims.

Challenges and Considerations

Family provision claims can be emotionally charged, often leading to familial disputes. It’s vital to approach these claims with a clear understanding of the legal landscape and the potential impact on family relationships. The guidance of experienced legal professionals can be invaluable in navigating these challenging waters.

Understanding family provision in contested wills

Understanding family provision in contested wills is crucial for anyone facing estate disputes or involved in estate planning in NSW. This guide sheds light on the key aspects of family provision claims, emphasizing the importance of professional legal advice to navigate these complex matters effectively.