With house prices ever rising, it is becoming increasingly common to see deceased estates dragged into the courts with family members fighting over the assets of their loved ones, because someone believes they did not get what they consider to be a fair share of the estate. Remember the Wran, Benaud and the McCullough Estates?

Whether the deceased estate is modest or large, families drag each other to the Supreme Court to 'duke it out' over who should get a bigger piece of the pie.

The Succession Act 2006 (NSW) is the legislation in New South Wales that allows a person to make a claim on an estate for provision.   

Who can make an application for provision?

Only 'eligible persons'.

In New South Wales, an 'eligible person' includes:

• a spouse of the deceased;

• a child of the deceased;

• a de facto of the deceased at the time of their death;

• a person who was wholly or partially dependant on the deceased and either a grandchild of the deceased or a member of the same household of the deceased; and

• a former spouse. Yes, you read that correctly - a former spouse is an eligible person.

When can you make a claim for provision?

In New South Wales, the claim must be made within 12 months of the date of the death of the deceased, unless there are exceptional circumstances.

The person making the claim will have to show that there has not been adequate provision made for them in the will of the deceased for their proper maintenance, education or advancement – ie. that their current circumstances are such that they have need for provision.

Tips and Traps

1. The executor or administrator (as applicable) of an estate is usually the defendant to any claim for provision made against an estate, and has an obligation to act in the best interests of the estate and the beneficiaries generally.

2. Don't wait to make a claim until after the estate has been finally administered. If the estate has no assets left and the executor or administrator issued all appropriate notices and administered the estate properly, there will be no assets available to be distributed if the claim for provision was to be successful.

3. Depending on which category of eligible person a claimant fits into, they may have to take extra steps to satisfy the court that they have a claim.

4. Parties making claims on deceased estates are expected to give full and frank disclosure of their financial circumstances. In the event a claimant does not give full and frank disclosure of their financial circumstances, it can adversely affect their claim.

5. Regardless of the size of the estate, the court will only award what is adequate provision. So, no crystal-studded grand pianos, diamond-encrusted bass guitars or 20 pairs of $300 shoes each year for 75 years (this was just part of the wish list Olivia Mead asked for from her father's $900 million estate – the WA Court of Appeal thought $6.14 million was adequate).

6. While most claimants and executors expect that their costs of the proceedings will be paid by the estate, this is not necessarily going to be the case.

For more information regarding claims on deceased estates please contact Snezana Vojvodic or Cherrie Homer.

For further articles on estate disputes, please see:

1. statutory wills;

2. informal wills;

3. lack of capacity at the time the will was made; or

4. undue influence on the testator at the time the will was made.

The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.

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