Are you thinking about making a claim against the estate of a person who has died?

Each year many people make claims against the estate of a loved one. There can be many reasons why this can happen. Not everyone can make a claim against a deceased person's estate. The law states that only some people can make a claim. The Succession Act 2006 (NSW) applies to the estate of a person who died on, or after, 1 March 2009. Section 57 provides that eligible persons may apply to the Supreme Court of NSW for a family provision order. A family provision order is a court order made for an eligible person out of the deceased for his or her maintenance, education, or advancement in life when the court finds that inadequate provision was made for them by the deceased. Who is an "eligible person"? An "eligible person" who may apply to the Court for a family provision order includes:

• a person who was the spouse of the deceased person at the time of the deceased death,
• a person with whom the deceased person was living in a de facto relationship at the time of the deceased death,
• a child of the deceased,
• a former spouse of the deceased,
• a person:
  • who was, at any particular time, wholly or partly dependent on the deceased, and
  • who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased was a member,
• a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death. This could include for example a friend who was caring for the deceased person.

A child of a deceased includes any child born as a result of sexual relations between the deceased person and another and adopted children. A close personal relationship means a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. A close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care for fee or reward, or on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). If you or someone in your family wants to know if they are eligible to bring a claim against a deceased persons estate then please contact a member of our Wills and Estates team.