Can I make a claim against an estate where I have been left out (or not left enough)?

To make a claim on an estate (a claim for “provision”) a person must first an “eligible person”.  The definition of eligible persons set out in Succession Act 2006 (NSW), s 57, includes (perhaps obviously):

  • the spouse of the deceased at the time of death;
  • a child of the deceased;
  • a former spouse of the deceased;

However the definition also includes a wider range of persons including:

  • a person who was at one stage “dependant” on the deceased;
  • a grandchild of the deceased;
  • someone who was at one time a “member of the household” of the deceased; and
  • someone who was in a “close personal relationship” at the time of death of the deceased.

Need not fairness

However the Court will not make an order for provision to balance out what some might say is an “unfair” will. The Court doesn’t divide an estate into four simply because the deceased had four children but left one child out or gave one child less than 25%.

A claim will only have prospects of success if the deceased made inadequate provision for the applicant’s proper maintenance, education and advancement in life. The court will consider:

  1. The applicant’s needs;
  2. The deceased’s duty, if any, to make provisions in favour of the applicant in their Will; and
  3. All the circumstances of the case.