The law recognises a testator’s fundamental right and freedom to dispose of assets after death in any manner the testator sees fit. This is known as “testamentary freedom”. Our legal system also recognises that people have moral obligations towards dependents and family members both during life and after death. If a testator fails to make proper or adequate provision for a dependent, legislation now allows that person to apply to the court for further provision.
This is commonly known as a “Family Provision Claim”. The name stems from the legislation that was introduced in NSW in 1982 called the Family Provision Act. Prior to the Family Provision Act, widows and children were given protection under the Testator’s Maintenance and Guardianship of Infants Act that was introduced in 1916. While the latter act primarily focused on ensuring adequate provision for spouses and young children, the Family Provision Act broadened the category of persons who were eligible to make a claim.
Family provision claims are now brought under Chapter 3 of the Succession Act 2006 (NSW). This legislation allows eligible persons to make a claim for further provision from an estate if they have been left out or not received adequate provision in a will. Eligible persons include spouses, de facto partners, same-sex partners, family members, children, step-children, adopted children and anyone who was financially dependent on the deceased or has a moral claim to a share of the estate.
If you are an eligible person, Catherine Henry Partners can assist you to make a claim to obtain further provision.
See Family Provision Claims