Can I make a Family Provision Claim?
If you meet one or more of the following criteria you are eligible to make a Family Provision Claim:
- You are a spouse or former spouse of the deceased’s person; or
- You were the deceased person’s de facto partner at the date of his or her death; or
- You are a child of the deceased person; or
- You: (A) are a grandchild of the deceased person, and (B) you were wholly or partly dependant on the deceased person at any time; or
- You: (A) lived in the deceased person’s home, and (B) you were wholly or partly dependant on the deceased person at any time; or
- You were in a close personal relationship with the deceased person at the time of their death.
Are you unsure if you are eligible to make a Family Provision Claim? Contact Phillip Briffa now to find out if you are eligible and discuss how we can help you with your claim.
Can I still make a Family Provision Claim if I have been left something in the Will?
Yes you can. The Court is empowered to make orders for further provision from an estate, so being a beneficiary does not prevent you from making a claim. The value of the gift received under the Will is a relevant consideration for the Court when it determines whether the provision made in the Will was inadequate.
Contact Phillip Briffa now to discuss the likelihood that you will receive further provision from the estate.
There are no assets in the estate apart from jointly owned assets and superannuation, can I make a Family Provision Claim?
Jointly owned assets and superannuation may be available for distribution to a successful claimant by having those assets clawed back into the estate and designated as ‘Notional Estate’.
Contact Phillip Briffa now to discuss which assets are capable of being designated as ‘Notional Estate’.
FAQS
How long do Court proceedings take after I have commenced proceedings?
Most proceedings are settled prior to the final Court hearing within 2 to 3 months after proceedings are commenced. If your case is not settled generally a final Court hearing will take place about 9 to 12 months after proceedings are commenced.
Contact Phillip Briffa now to obtain a free appraisal regarding the strength of your claim.
Do I have to attend Court?
You will only need to attend Court if your case proceeds to a final Court hearing. About 95% of our cases settle out of Court either before, during or after the compulsory mediation stage, so chances are you will not need to attend to Court.
Contact Phillip Briffa now to obtain a free appraisal regarding the strength of your claim.
What is the compulsory mediation?
About 3 months after proceedings are commenced the Court will schedule a compulsory mediation. The mediation is attended by the plaintiff (you), your legal representatives (us), the executor, and the executor’s legal representatives.
The mediation presents an opportunity for you to settle your case without needing to attend a final Court hearing. As this is a faster and more cost-effective method to finalise your claim, we’ll aim to settle your claim at the mediation.
Contact Phillip Briffa now to discuss our preferred strategy to maximise the chances of your claim settling at the mediation stage.
Is there a time limit for making a Family Provision Claim in NSW?
Yes, you have 12 months from the date of death to make a Family Provision Claim.
What if I’ve missed the deadline to make a Family Provision Claim in NSW?
You may be able to obtain an extension if special circumstances apply. These may include:
• Not knowing the person had died;
• Not knowing about the time limits for making your claim.
If you’ve missed the deadline for your Will dispute claim, don’t panic – we can look into your case and advise how to proceed. Contact Phillip Briffa now to find out more.
What happens if the deceased did not leave a Will?
When this happens (called dying “intestate”), the property of the deceased is distributed according to special rules set out in the Succession Act 2006 (NSW).
The problem with this scenario is that it can result in an unfair split, as the rules don’t consider individual circumstances.
If you’re facing the difficulties of an unfair distribution caused by someone dying intestate, contact Phillip Briffa now to discuss your options.
Can you tell me what my Family Provision Claim is worth?
Once we understand the facts of your case, we’ll be able to provide you with more information regarding the strength of your claim, including a potential range of what your claim could be worth.
Contact Phillip Briffa now to discuss what your claim could be worth.
What things will the Court consider in my Family Provision Claim?
When a person prepares a Will, they are free to leave their estate to whomever they please. However, the Court also recognises that in certain situations, Will-makers have a responsibility to provide for certain people not included in their Will.
Below are some of the factors the Court may consider when it assesses your claim. These factors also help us to determine the potential range of what your claim could be worth:
• The nature of the relationship between you and the deceased;
• The relationship between the deceased and any other beneficiary;
• Whether you made contributions to build up the estate (without sufficient repayment);
• The size and nature of the estate;
• Whether the deceased made any promises to you;
• Your health and the health of any other beneficiary;
• Your financial needs and the financial needs of any other beneficiary.
Contact Phillip Briffa now to discuss what your claim could be worth.
I live in a different State to the deceased person – will this affect my Family Provision Claim?
You don’t need to live in the same State as the deceased in order to dispute their Will.
The law which governs the deceased’s estate is the law of the State where the deceased left property when they died. So, for example, if the deceased owned property in New South Wales, it doesn’t matter whether you live in New South Wales, in another State or even overseas – you can still make a Family Provision Claim.
We’ve acted for clients-based Australia wide and overseas. Wherever you live, we can help with your Family Provision Claim.
Contact Phillip Briffa now to discuss your claim.
How can I obtain a copy of someone’s Will? – POSSIBLY EXTRACT INTO OWN BLOG POST? SEEMS LIKE VERY COMMON QUESTION
If you are unsure if you’ve been included as a beneficiary in someone’s Will we recommend you contact the Executor (the person responsible for administering the estate) or the solicitor acting for the estate, to request a copy of the Will. Alternatively, we can make this enquiry on your behalf.
In New South Wales, you are entitled to inspect or receive a copy of a deceased’s persons Will if you are:
• Named or referred to in the Will;
• Named or referred to in an earlier Will as a beneficiary;
• The surviving spouse, de-facto partner, or child;
• The parent or guardian of the deceased;
• Entitled to a share if the deceased died intestate (i.e. without a Will);
• A parent or guardian of a minor referred to in the Will (or who would be entitled to a share if the person died intestate);
• A person/creditor who may have a claim against the deceased’s estate;
• A person who managed the deceased’s personal estate immediately before death;
• An attorney under the deceased’s enduring power of attorney.
Do you need assistance with obtaining a copy of a Will? If so, contact Phillip Briffa now to discuss how we can help.
I need to dispute a Will, but I can’t afford a lawyer – how can you help me?
We represent many of our clients on a ‘No-win, No-fee’ and ‘Deferred fee’ basis.
Contact Phillip Briffa now to us to see if you qualify.
Do you act on behalf of executors in defending an estate?
Yes we do. If you are an executor faced with the task of defending a Will dispute claim we can help.
Contact Phillip Briffa now to get your questions answered.
