Legal Tip 274: Who Can Make a Family Provision Claim on Death?

Discussion in 'Wills & Estate Planning' started by Terry_w, 27th Feb, 2020.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    When a person dies if they have not made adequate provision for certain persons, these persons could potentially make a claim against the estate. This includes where they have been left out of a will, of the gift made to them under the will is not adequate but it also includes situations where there is no will and the intestacy laws will mean they will not get adequate provision.


    So who can make one of these claims? Each state has different laws, but under NSW law the following types of people can make a claim (keep in mind this is just a summary):

    - Current spouse, whether married or defacto

    - former spouse

    - child

    - a grandchild who was at any time dependant on the deceased, or

    - someone who was living in a close personal relationship with the deceased at the time of their death.


    Note that those not classed as eligible persons would be parents and siblings – unless they were in a close personal relationship with the deceased at death. This would involve them living together and providing domestic support and personal care.


    And just because a person could make a claim doesn’t mean they will. If they do make a claim it also doesn’t necessarily mean they will be awarded anything either.


    Read the NSW law here:

    Section 57 Succession Act 2006

    SUCCESSION ACT 2006 - SECT 57 Eligible persons
     
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  2. Paul@PAS

    [email protected] Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    And how do they know if they were not provider for ?

    A eligible beneficicary can request a copy of the will and the probate lodgements. I know a case where the beneficiary obtained a copy from the supreme court probate div under s54 of the Succession Act (NSW). But the executor may be obliged to provide this information.
     
  3. SatayKing

    SatayKing Well-Known Member

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  4. Paul@PAS

    [email protected] Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    I had a client many years ago like that. They soon realised they were the offspring of a well known recording artist who died with no family and a catalog of royalty paying music who died intestate. They didnt even know they had been adopted. Apparently the birth mother had not added the father to the birth but the hospital records did. As I recall they were very careful with the disclosure and proof and invited him in to discuss a family history issue with his parents (they didnt explain which parents !!) . He then had to get DNA testing to assist with confirming.
     
  5. SatayKing

    SatayKing Well-Known Member

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    I wasn't aware such an activity occurred. Thought all the unclaimed estate money automatically went to the State no matter what.

    Found it a very interesting article.
     
  6. Paul@PAS

    [email protected] Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    No. The Public Trustee is given the role of executor for all who die intestate (ie no will). They work to exhaust the possibility of beneficiaries before the state keeps the $$$. The State Govt are like a last line default beneficiary. They cant just take it.
     
  7. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    If a person dies without a will the public trustee is not given the role of executor. Paul I think you confusing the fact that until probate or administration is granted the assets of the deceased in the nsw public trustee (each state would be different).
    This is to avoid the situation where there is no one to serve papers on until there is a legal personal representative.

    On intestacy anyone can apply for appointment as administrator. This will be very similar to being executor.

    Often there are disputes over this by different family members
     
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