Wills & Estates

Why You Need to Be Aware of The Family Provision Legislation When Drafting a Will

When it comes to wills, you would think that you can leave whatever you want to whomever you want. But it’s not as simple as that, and one thing that can interfere is the Family Provision Legislation.

What is the Family Provision Legislation?

This legislation is an amendment to the 1982 Family Provision Act to ensure that adequate provision is provided to family members and other persons from the the deceased person’s estate.

What this means is that if the court finds that you didn’t leave enough to certain people, it will override your will and rule in their favour for addition inheritance.

Who can make a family provision claim?

According to the legislation in NSW, “eligible persons” are able to make a family provision claim against a deceased estate. Eligible persons include:

  • A spouse of the deceased at the time of death.
  • A person who was living with the deceased at the time of death in a de-facto relationship (including same sex partners). The definition of a de-facto partner is that they have lived together for two years up to the date of the deceased’s death.
  • The deceased’s child, including adopted children but not step-children.
  • The deceased’s former spouse that has not remarried prior to the death of the deceased.
  • A person who was:
    -dependent on the deceased at a particular time.
    -a member of the household of the deceased.
    -a grandchild of the deceased.
    -a person who was living in a close personal relationship with the deceased when the deceased died.

Parents, siblings, step-children and former de-facto spouses are not considered to be eligible persons, unless they are eligible under the category where they lived with the deceased and were dependent on the deceased.

So what does this mean for your will?

This means that you need to be aware of what to do and how to draft your will in order to avoid a Family Provision Claim.

We at Elmassian Lawyers specialise in drafting wills and can make sure your will is solid and will stand the test of court. Speak to us today by calling us on 02 9958 2407