• About Us
• Client Services
• Resources

Changes to Family Provision Claims

May 2009

In the past, claims for provision out of an estate in NSW were made under the Family Provision 1982 [the 1982 Act].  From 1 March 2009, the 1982 Act ceased to apply in relation to estates of persons who die on or after 1 March 2009.  However, the 1982 Act still applies to the estates of those who died before that date.  This means there are now two different sets of rules which could apply to family provision claims in NSW, depending on when the deceased died.

Chapter 3 of the Succession Act 2006 contains the new rules which apply to estates where the person died on and after 1 March 2009.   Some of the key changes in include: 

• The time limit for making a Court application for provision has been reduced from 18 months to 12 months from date of death. 
• The court cannot extend the time for making an application for provision just because the parties agree to an extension.  This means that, even if the estate reaches an agreement with the claimant, the claimant will need to start their Court proceedings within the 12 month period. 
• A person who was living in a “close personal relationship” with the deceased at the time of the deceased’s death is can now come under a new category of “eligible person”, although they must still establish that there are sufficient factors warranting their making the application for provision. 
• There is a new procedure for executors or administrators to give a notice of proposed distributions from the estate once six months has passed since the date of death, in order to protect them from personal liability when they make distributions (provided they have not notice of any claims against the estate). 
• There is also a new provision which protects executors and administrators from personal liability where they make distributions in order to provide for the maintenance or education of “eligible persons” who were wholly or substantially dependent on the deceased immediately before the date of death.  This will help ensure that distributions needed to help care for children can still be made quickly, without having to wait until six months has passed. 
• Unless the Court agrees that there are “special reasons”, all family provision applications must now be referred for mediation before any hearing takes place. 
• The Act allows the Government to make regulations fixing of legal costs charged in family provision claims, including the maximum costs that can be paid out of the estate or notional estate.  This will affect both claimants and estates and is intended to reduce the number of spurious claims and deter parties from running up high legal costs in small estates. 
• For estates with a value of $750,000 or less the Court can choose to decide the cased based on the evidence filed by the parties, without the parties actually having to attend Court and be cross-examined.  This again is aimed at reducing the costs incurred by the legal parties in smaller estates.

More detailed commentary is set out in Succession Law and Practice (NSW) published by LexisNexis and commonly referred to as “Mason and Handler”.  Richard Neal is a co-author of that work.

© Teece Hodgson & Ward Solicitors

• Disclaimer
• Privacy Policy