Article

Understanding Estates & Family Provision Claims in NSW

An estate refers to the total property, assets, and liabilities left behind by a deceased person. This includes real estate, personal belongings, bank accounts, investments, and any other valuable possessions. When a person passes away, their estate is managed and distributed according to their will or the laws of intestacy if there is no will. The process of managing and distributing the estate is overseen by an executor or administrator, who is responsible for ensuring that the deceased’s wishes are carried out and that any debts and taxes are paid. The estate may also be subject to claims from family members or dependents who feel they have not been adequately provided for in the will, leading to family provision claims.

An estate can be complex and may involve various legal and financial considerations. It is important for individuals to plan their estates carefully to ensure that their assets are distributed according to their wishes and to minimize the potential for disputes among family members. Seeking professional advice from a solicitor or estate planner can help individuals navigate the complexities of estate planning and ensure that their affairs are in order.

Summary

  • An estate refers to the total property, assets, and liabilities left behind by a deceased person.
  • Family Provision Claims are legal claims made against an estate by family members or dependents who believe they have not been adequately provided for in the deceased’s will.
  • Family Provision Claims can be made by spouses, de facto partners, children, and other dependents of the deceased.
  • Family Provision Claims are determined based on various factors including the financial needs and resources of the claimant, the deceased’s obligations, and the size of the estate.
  • Assets included in an estate can range from real estate and personal belongings to bank accounts, investments, and life insurance policies.

What are Family Provision Claims?

Family provision claims, also known as inheritance claims or contested wills, are legal actions brought by eligible family members or dependents seeking a share or a larger share of the deceased’s estate. These claims are based on the premise that the deceased did not adequately provide for the claimant in their will or under the laws of intestacy. Family provision claims are designed to ensure that close family members and dependents are adequately provided for from the deceased’s estate, particularly if they have not been adequately provided for in the will.

Family provision claims can be complex and emotionally charged, often leading to disputes among family members. These claims are typically brought before the Supreme Court, where the court will consider various factors, including the financial needs and resources of the claimant, the size and nature of the estate, the relationship between the claimant and the deceased, and any competing claims from other beneficiaries. The court has the discretion to make orders for provision from the estate to ensure that adequate provision is made for eligible claimants.

Who can make a Family Provision Claim?

In New South Wales, eligible persons who can make a family provision claim include the spouse or de facto partner of the deceased, children (including adopted and stepchildren), former spouses or de facto partners who were financially dependent on the deceased, and any person who was living in a close personal relationship with the deceased at the time of their death. In some cases, grandchildren, parents, or siblings of the deceased may also be eligible to make a claim if they were financially dependent on the deceased at the time of their death.

It is important to note that not all family members or dependents are automatically entitled to make a family provision claim. The court will consider various factors, including the nature of the relationship between the claimant and the deceased, the financial needs and resources of the claimant, and any competing claims from other beneficiaries. Eligible claimants must also demonstrate that they have not been adequately provided for in the deceased’s will or under the laws of intestacy.

How are Family Provision Claims determined?

Factors Considered Explanation
Financial Needs The court will consider the financial needs of the claimant and other beneficiaries.
Relationship with Deceased The nature of the relationship between the claimant and the deceased will be taken into account.
Size of the Estate The value of the deceased’s estate will influence the court’s decision.
Contributions to the Estate Any contributions made by the claimant to the deceased’s estate will be considered.
Other Relevant Factors Any other relevant factors that may impact the claimant’s need for provision will be examined.

Family provision claims are determined by the Supreme Court based on various factors and considerations. The court will assess the financial needs and resources of the claimant, as well as those of any other beneficiaries of the estate. The court will also consider the size and nature of the estate, including any assets, liabilities, and testamentary dispositions made by the deceased. Additionally, the court will take into account the relationship between the claimant and the deceased, including any obligations or responsibilities owed by the deceased to the claimant.

The court has broad discretion in determining family provision claims and may make orders for provision from the estate to ensure that adequate provision is made for eligible claimants. The court will strive to achieve a fair and equitable outcome, taking into consideration all relevant circumstances and competing interests. It is important for individuals considering making a family provision claim to seek legal advice from a solicitor with experience in estate litigation to understand their rights and options.

What assets are included in an Estate?

The assets included in an estate can vary depending on the individual’s circumstances and may include real estate properties, personal belongings such as jewellery and artwork, bank accounts, investments such as stocks and shares, superannuation benefits, life insurance policies, business interests, and any other valuable possessions owned by the deceased at the time of their death. Additionally, any debts or liabilities owed by the deceased are also considered part of their estate and must be settled before the remaining assets can be distributed to beneficiaries.

It is important for individuals to carefully consider their assets and liabilities when planning their estates to ensure that their wishes are carried out effectively. Seeking professional advice from a solicitor or estate planner can help individuals understand what assets are included in their estate and how best to manage and distribute them according to their wishes.

How can you contest a Will in NSW?

Contesting a will in New South Wales involves bringing a family provision claim before the Supreme Court. To contest a will, eligible family members or dependents must demonstrate that they have not been adequately provided for in the deceased’s will or under the laws of intestacy. This may involve showing that they have financial needs that have not been met by the provisions made in the will or under intestacy laws.

Contesting a will can be complex and emotionally challenging, particularly when it involves disputes among family members. It is important for individuals considering contesting a will to seek legal advice from a solicitor with experience in estate litigation. A solicitor can help individuals understand their rights and options, gather evidence to support their claim, and navigate the legal process effectively.

What are the time limits for making a Family Provision Claim in NSW?

In New South Wales, there are strict time limits for making a family provision claim. Eligible claimants must bring their claim within 12 months from the date of death of the deceased. Failing to meet this time limit may result in the claim being barred, unless special circumstances exist that warrant an extension of time.

It is important for individuals who believe they have grounds for a family provision claim to seek legal advice promptly to ensure that they do not miss the deadline for bringing their claim. A solicitor with experience in estate litigation can help individuals understand their rights and obligations under the law and take appropriate steps to protect their interests within the required time frame.

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FAQs

What is an estate in NSW?

An estate in NSW refers to the assets and liabilities left behind by a deceased person. This can include property, money, investments, and personal belongings.

What is a family provision claim in NSW?

A family provision claim in NSW is a legal action that can be taken by an eligible person to seek provision from the estate of a deceased person if they believe they have not been adequately provided for in the deceased’s will.

Who can make a family provision claim in NSW?

Eligible persons who can make a family provision claim in NSW include spouses, de facto partners, children, grandchildren, and certain other dependents or persons who were financially dependent on the deceased.

What factors are considered in a family provision claim in NSW?

When considering a family provision claim in NSW, the court will take into account factors such as the financial needs and resources of the claimant, the size of the estate, the relationship between the claimant and the deceased, and any other relevant circumstances.

What is the time limit for making a family provision claim in NSW?

In NSW, a family provision claim must generally be made within 12 months from the date of the deceased’s death. However, in some cases, the court may grant an extension of time to make a claim.

Can a family provision claim be contested in NSW?

Yes, a family provision claim in NSW can be contested by the executor or other beneficiaries of the estate. This can lead to a court hearing to determine the outcome of the claim.

What are the potential outcomes of a family provision claim in NSW?

The potential outcomes of a family provision claim in NSW include the court ordering provision to be made from the estate to the claimant, dismissing the claim, or making a settlement between the parties involved.

Do I need legal representation for a family provision claim in NSW?

It is advisable to seek legal representation for a family provision claim in NSW, as the process can be complex and involve court proceedings. A lawyer with experience in estate law can provide guidance and representation throughout the claim process.

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