WILLS GONE WILD: Claiming Your Fair Share of the Estate

When Inheritance Disputes Arise

When a family member passes away, leaving behind a valid Will, you would expect everything to be smooth sailing. The Estate is divided, everyone gets their fair share, and life goes on. Right? Wrong.

Unfortunately, life – and death – often isn’t that simple. Wills have a funny way of stirring up family drama, especially when someone feels like they’ve drawn the short straw. Maybe your sibling gets the family home, and you’re left with the garden gnome collection. Or worse, maybe your name is nowhere to be found in the Will. That’s where Family Provision Claims come into the picture — your legal chance to say, “Wait a minute, that’s not fair!”

If you feel you haven’t received “adequate and proper” provision under the Will of a deceased person (or pursuant to intestacy laws if there is no Will), you may be entitled to make a Family Provision Claim against the estate.

What is a Family Provision Claim

A Family Provision Claim is an application to the Supreme Court of NSW for a share, or a greater share, of the estate of a deceased person for the maintenance, education, or advancement of life.  Essentially, it is an application made by a person contesting a Will because they are either not named as a beneficiary of the Estate, or are named but believe the provision is inadequate and proper provisions are required.  It’s not about greed; it’s about claiming what you are fairly entitled to.

Who Is Eligible to Make a Claim?

Before lodging a claim, there’s a catch. In New South Wales, a Family Provision Claim can only be made by an “eligible person” under section 57 of the Succession Act 2006 (NSW) can apply.

Eligible Persons Include:

• the spouse of the deceased person;

• a person living in a de facto relationship with the deceased;

• a child of the deceased person, including adopted children;

• a former spouse of the deceased person;

• a person who was:

  • dependent (wholly or partly) on the deceased person at any time; and

  • a grandchild of the deceased person or a member of the same household;

• a person living in a close personal relationship with the deceased at the time of death.

Unfortunately (or fortunately), that distant cousin who turns up to the family BBQ for free food likely won’t qualify.  But while parents, siblings, stepchildren and former de facto spouses are not explicitly listed as eligible persons, they may still be entitled to claim against an estate if they were dependent on the deceased and/or lived with them for some time.

Claims by Executors

If you’re named as Executor of in the Will, you can still make a Family Provision Claim in most cases. But first, you’ll need to step down as Executor. Executors must distribute the Estate in accordance with the Will and defend it against claims. You can’t distribute the estate and file a claim against it — that’s a conflict of interest. Claims by Executors add an extra layer of complexity and require expert legal advice.

If you are an Executor of the Estate as named in the deceased person’s Will, you can still make a Family Provision Claim in most cases.  But (and it’s a big “but”), you will need to first step down as Executor.  As an Executor, your duties to the Estate involve distributing the Estate in accordance with the terms of the Will and defending it against any legal claims.  You cannot be both the person distributing the estate and the one filing a claim against it – that’s what we call a conflict of interest.  Whilst all Family Provision Claims may be complex, those brought by Executors have an added layer of complexity and accordingly require expert legal advice to assist with the same.

Factors the Court Considers

So, what happens when you make a claim? Do you get what you ask for? Not necessarily.

The Court weighs up several factors before deciding whether you should receive more. It doesn’t hand out estate funds like candy at Halloween.

Key Legal Considerations

Under section 60 of the Succession Act 2006 (NSW), the Court may consider:

• Your relationship with the deceased, including its nature and duration— Was it tight knit?  Strained?  Did you even speak?;
• Any obligations or responsibilities owed to you— Were you counting on them for support?;
• The size of the estate, including notional property and liabilities;
• Your financial circumstances (including current and future needs), age, and health;
• The financial circumstances of anyone you live with;
• Your contributions (financial or otherwise) to the deceased’s welfare or estate;
• Any provision made for you during the deceased’s lifetime or from the estate;
• The deceased’s testamentary intentions— did they have good reasons for leaving you less, or nothing?;
• Whether the deceased provided you with maintenance or support;
• Whether anyone else is responsible for supporting you;
• Your character and conduct before and after death— were you the dutiful child, or only showed up for free food?);
• Any applicable aboriginal or torres strait islander customary law;
• Other claims on the estate— you might not be the only one vying for a share!;
• Any other relevant matter.

Deadlines for Filing a Claim

Strict time limits apply. In NSW, you must file a Family Provision Claim within twelve (12) months from the date of death.

The Court may grant an extension only in exceptional circumstances and if estate assets remain. Executors are usually required to distribute an estate six (6) months after death, which can make recovery harder once distribution occurs.

How to Reduce the Risk of a Claim

You can’t always prevent a Family Provision Claim, but you can make it harder for someone to contest your estate. The most important step is having a valid, up-to-date Will — especially after major life events like marriage, divorce, or the birth of children.

You might also consider setting up a Testamentary Trust in your Will for extra protection. In any event, consult an experienced estate lawyer to ensure your planning takes these considerations into account.

If you’re thinking about making a Family Provision Claim, remember, it can be a complex and emotionally charged process. Seeking advice from an experienced lawyer is essential to understanding your rights, entitlements, and obligations.

Speak to Madison Marcus About Your Estate Needs

Family Provision Claims are complex, time-sensitive, and often emotionally charged. Whether you are seeking to contest a Will, defending an estate against a claim, or planning ahead to protect your assets, the right legal advice is essential.

At Madison Marcus, our dedicated Wills and Estate Planning team has extensive experience guiding clients through inheritance disputes, Family Provision Claims, and estate planning strategies. We focus on delivering practical, tailored solutions that safeguard your interests while minimising conflict.

Take control of your estate planning and protect your legacy — speak with our team today.

This article is provided for general informational purposes only and does not constitute legal advice. While every effort is made to ensure the accuracy of the information provided, Madison Marcus Law Firm makes no representations or warranties, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the content. Readers are advised to seek professional legal advice tailored to their specific circumstances before taking any action based on this information. Madison Marcus Law Firm accepts no liability for any loss or damage incurred as a result of reliance on the information presented herein.