To succeed with a family provision claim under the Succession Act 2006 (NSW) and in accordance with the Supreme Court Practice Note SC EQ 7, an eligible person must satisfy several requirements and follow specific procedures. Here’s an overview of what is required:
Eligibility
Eligible Persons:
1. Spouse: The spouse of the deceased at the time of death.
2. De Facto Partner: A person who was living in a de facto relationship with the deceased at the time of death.
3. Child: A child of the deceased.
4. Former Spouse: A former spouse of the deceased.
5. Dependent Person: A person who was, at any particular time, wholly or partly dependent on the deceased and who is a grandchild of the deceased or was, at any time, a member of the household of which the deceased was a member.
6. Close Personal Relationship: A person with whom the deceased was living in a close personal relationship at the time of death.
Grounds for the Claim
To succeed in a family provision claim, the eligible person must establish that:
1. Inadequate Provision: The deceased did not make adequate provision for their proper maintenance, education, or advancement in life in the will or through the intestacy laws.
2. Court’s Discretion: The court must determine that it is proper for provision to be made out of the estate for the eligible person.
Considerations by the Court
The court considers various factors to determine whether to make a family provision order, including but not limited to:
1. Relationship with the Deceased: The nature and duration of the relationship between the applicant and the deceased.
2. Needs of the Applicant: The financial resources, needs, and earning capacity of the applicant.
3. Estate Size and Nature: The size and nature of the deceased’s estate.
4. Contributions: Any contributions made by the applicant to the deceased’s estate or welfare.
5. Conduct: The conduct of the applicant before and after the deceased’s death.
6. Other Beneficiaries: The interests of other beneficiaries and any competing claims.
Procedural Requirements
1. Time Limit:
• An application must be made within 12 months from the date of the deceased’s death. The court may extend this period in certain circumstances.
2. Filing an Application:
• File a Summons and Affidavit in the Supreme Court of NSW, stating the grounds for the claim and the relief sought.
• The affidavit should include details about the applicant’s relationship with the deceased, financial position, and reasons why the provision made (or lack thereof) is inadequate.
3. Practice Note SC EQ 7:
• Pre-Filing Requirements: Parties should engage in pre-filing negotiations and mediation to attempt to resolve the matter without court intervention.
• Documentary Evidence: Ensure all necessary documentation is included, such as the will, death certificate, and any relevant financial records.
• Affidavits: Provide affidavits supporting the claim, detailing the relationship with the deceased, financial needs, and contributions to the deceased’s estate or welfare.
• Service: Properly serve all relevant parties, including the executor of the estate and any other interested parties.
4. Court Hearing:
• Attend the court hearing where the judge will consider the evidence presented, the needs of the applicant, and the merits of the claim.
5. Mediation:
• In many cases, the court will order mediation to encourage settlement without a full trial.
Conclusion
Success in a family provision claim under the Succession Act 2006 (NSW) and Practice Note SC EQ 7 requires proving eligibility, demonstrating that the deceased did not make adequate provision, and following the procedural requirements of filing and serving the claim within the stipulated time frame. Engaging a solicitor experienced in family provision claims is highly advisable to navigate the legal complexities and improve the likelihood of a successful outcome.
