Family Provision Claim Will Wills Estate

The Many Ways to Skin a Cat in Will and Estate Matters

Family Provision Claim Will Wills Estate

We have previously posted several times about Wills and family provision claims.

In a nutshell, this is the most conventional way to “contest a will” in NSW. A successful family provision claim has the effect of “re-writing” the Will, and redistributing the assets of the estate to different people in different shares. While some people have strong views about not challenging the last wishes of the deceased, before taking a negative view, bear in mind that we do too. However, in an appropriate case, such as where the executor / trustee is wasting the estate on themselves, or where a greedy family member has tricked a vulnerable elderly person into changing their Will in their favour, we will take on a case. Most of our cases in this area involve the latter-type situation, and particularly where the person left out made substantial contributions to the assets, such as renovations and improvements to the family home, and usually under the promise of it being left to them.

This area of law has become a specialist niche. Without criticising anyone, there are some among us who have given us a bad name. They typically prey on vulnerable clients, drum up billable hours by undertaking an enormous amount of top-heavy work in the early stages (or at least charge for allegedly doing so), get the client to an early mediation and apply pressure to have them accept an inferior deal and get themselves paid. Because that is their goal from the outset, the work is lacking in quality, which is something that impacts their case if they switch lawyers without signing off on their deal. Either way, they sell themselves short by accepting poor representation, or by accepting a quick deal that does not reflect their true entitlements.

Generally, such people are at a disadvantage to begin with. They have very little financial resources and have no idea about the law, and especially this area of it. They do not realise that family provision claims are a very small aspect of estate law and the law concerning trusts and trustees in particular, and there are usually many other ways their case can be run to improve their prospects.

Take the examples above: the client who has made significant improvements to their parents’ family home, to the point of changing its nature, or the client who, in reliance on the promise of being left that home, spent a considerable amount of time and money renovating and maintaining the home, and / or the deceased themselves. This is not necessarily (just) a family provision claim.

A family provision claim is based on three preliminary things:

  1. The Plaintiff is an eligible person (such as an immediate family member);
  2. The Plaintiff has a need for provision; and
  3. That need has not been met by the Will.

After that, the Court’s job, in practice, is to balance the competing needs of the beneficiaries and the claimant / Plaintiff, and ensure a just and equitable distribution according to the personal circumstances of each and the asset position of the estate.

Usually, in practice, this means that the claim of a Plaintiff in a family provision claim is limited to a fraction of the estate, which is usually a single family home these days. That means, in turn, that the home will usually have to be sold to provide for the shares of other beneficiaries, unless the Plaintiff can borrow within a very short time frame to pay them out. If that is not an option, and the Plaintiff is really entitled to the entire home, then they can never really win with a family provision claim. However, had they brought a claim for proprietary or promissory estoppel, and succeeded, the entire home would be theirs and would no longer be considered estate property, leaving no claims on it from the other beneficiaries.

It is therefore important, even when dealing with small estates, to have estate lawyers representing you with a knowledge and experience in all aspects of estate law, and to frame your case and evidence according to your goals, which may not always be the simple family provision claim advertised.

As always, feel free to contact us about this area of law or if you need some advice

For More Information:

New South Wales Department of Justice LawAccess – Family Provision Claims
New South Wales Civil and Administrative Appeals Tribunal Website

Please note: this is not legal advice to be relied upon, as circumstances in each case will be different.


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