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Who can make a claim on my Will?

Disputes

When family provision claims against deceased estates are reported in the media, it sometimes appears as though anyone can make a claim on a deceased estate, no matter how remote the relationship between the parties.

This is not the case. Only certain categories of “eligible persons” as defined in Section 57 of the Succession Act 2006 (NSW) can make a successful claim on a deceased estate. If the claimant does not fit within one of these categories, their application will fail.

An “eligible person” is defined as follows:

  1. A spouse of the deceased at the time of death;
  2. A former spouse of the deceased;
  3. A de facto partner of the deceased at the time of death;
  4. A child of the deceased;
  5. A person who was at any particular time wholly or partly dependent on the deceased and either a grandchild of the deceased or a member of the deceased’s household, and,
  6. A person who was living in a close personal relationship at the time of death.

Occasionally there will be a dispute about establishing eligibility within these categories. We often see situations where the existence of a de facto relationship at the date of death is disputed by the children of the deceased.

Despite this, proving eligibility is usually a straightforward exercise.  Once it has been established the Court will then consider whether the deceased failed to make adequate provision for the claimant’s proper maintenance, education or advancement in life and then what, if any, provision ought to be made for the claimant.