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Family Provision Claims

We routinely assist clients who are interested in contesting a will by lodging a family provision claim, or clients who as executors have been sued by disgruntled family members or others seeking to participate in the proceeds of an estate. We provide legal advice, guidance and representation throughout the duration of the proceedings related to the family provision claim, including representing our clients in court, if necessary.

How we can help

  • Wills and Testamentary Trusts
  • Probate and Letters of Administration
  • Powers of Attorney and Enduring Guardianship

Expertise

Following the death of a loved one, it can be the case certain individuals may have a view that the deceased’s will divides the estate unfairly amongst the beneficiaries, fails to acknowledge one or more beneficiaries adequately or ignores a potential beneficiary or group of beneficiaries. SWS Lawyers is highly capable of assisting both those individuals seeking to challenge a will as well as executors charged with the obligation to defend the terms of a will. Alternatively, we can operate as an intermediary to help settle potential disputes arising out of a will or an estate in the most cost effective and equitable manner.

There are 3 key considerations that come into play when considering the family provision claim. They are the identity of the person making the claim, the basis of the claim, and the timing of the claim.

Firstly, only the following people, by their relation to the deceased, are eligible to make a family provision claim:
the surviving partner, including de-facto;

  • a child, including adopted children;
  • a former partner;
  • a dependent;
  • a member of the household; or
  • a person with a close relationship.

Secondly, a range of possible considerations may be taken into account when evaluating the basis of the claim but in broad terms, the most common bases are:

  • the level of dependency by the applicant the deceased;
  • the adequacy of the share of the estate for the applicant’s maintenance and support;
  • the timing of the commencement of the relationship between the applicant and the deceased, for example if the relationship began after the will was executed;
  • the adequacy of the share of the estate for applicants who are former partners or children from a previous relationship;
  • any evidence that the deceased was unduly influenced by one of more of the other beneficiaries of the will;
  • the unfairness of the will; and
  • any lack of clarity in the will.

Thirdly, a claim by an eligible person must be made to the Supreme Court of New South Wales within 12 months of the death of the deceased person, unless the eligible person can establish for the Court special circumstances for not making a claim within the 12-month period.

Their approach is always professional and delivered at a standard comparable to a capital city law firm. It is the clear strategic direction that has always impressed me about the SWS team.

-Director, Top 10 Australian Accounting Firm

We believe their ability to combine first rate legal expertise, commercial judgement and strong negotiating skills is rare amongst lawyers and provides us with a real competitive advantage in corporate transactions. We use SWS because of their ability, not their post code.

-Robert Radcliffe-Smith, Advent

The combination of rare legal expertise, commercial judgement and strong negotiating skills is rare amongst lawyers and provides us with a real competitive advantage in corporate transactions.

-Paul Valaire, Addcar

SWS has assisted with advice on securing and exercising complex property and commercial contractual rights and assisting with protracted contractual management and implementation. We value legal experts who can offer pragmatic and commercial legal solutions for our complicated matters. SWS Lawyers has consistently met these criteria.

-Leading AU/NZ Logistics Company

The team at SWS Lawyers have already showcased their professionalism, commitment, positive can-do attitude and insight into our needs and have a clear understanding of the disability sector.

-Garry West-Bail, Deaf Sports Australia
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