What is a family provision order?

Date: Aug 20, 2014

On March 1 2009 the Succession Act 2009 replaced the Family Provision Act 1982. This means that proceedings for family provision orders regarding a person who died after this date are pursuant to the Succession Act 2009.

What is a family provision order? 

A family provision order allocates property of a deceased person's estate or notional estate to an eligible person for maintenance, education or advancement in life. The order is made by the Court (usually the New South Wales Supreme Court) under Chapter 3 of the Succession Act 2009. 

An eligible person is described in section 57(1) of the act as a person who is married to, or in a de facto relationship with, the deceased at the time of their death, a child of the deceased or a former spouse or partner.

Other eligible people include a person who was wholly or partly dependent on the deceased's, a grandchild or household member of the deceased's, or a person living in a close personal relationship with the deceased at the time of their death. 

A close personal relationship, under the Succession Act 2006, refers to a relationship where you provide free domestic support or care to a person that you live with.

An application for a family provision order is made by filing a Summons in the Equity Division of the Supreme Court. A person has 12 months from the date of the deceased's death to commence proceedings for a family provision order with the court. 

If the order is not made within this time period an order extending the time for applying may be made to the court.  

A recent case regarding a Family Provision Order

The NSW Supreme Court recently ruled on a family provision order. There were two claimants who applied for individual family provision orders of the deceased's estate - the widow of the deceased and the child of the deceased from a previous marriage. 

While the widow filed her summons to the court in the specified time period, the son of the deceased did not and was required to seek an order extending the time limit for submission of his application.

The defendant in the case was the step-child of the widow and the brother of the other claimant. He was named the executor of the will and was granted probate. The court found that the will did not properly provide for either claimant, so each claimant was designated portions of the deceased's estate to meet their needs relating to maintenance, education or advancement in life as seen appropriate by the court.

Both the widow and the son were found to be eligible people under section 57(1) of the act. The extension of time was also granted to the claimant. 

For further information on family provision orders or challenging a will, talk to an experienced wills and estates lawyer.