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I Am Divorced and I Have Had My Property Settlement – Is My Estate Safe From My Former Spouse - Family Provision Claims

06/11/2021

The general expectation of most people is that obtaining a divorce and having a property settlement prevents any further claims being made in the future.  That is not always the case.  In other website Articles, Watson & Watson discuss claims being made after divorce and property settlement for spousal maintenance and circumstances in which the Federal Circuit and Family Court of Australia might reopen a property division case. 

A property division which has not been properly documented can expose a person to a claim being made against their deceased Estate following their death. 

Succession Act (NSW) 2006

The Succession Act is an Act of the NSW Parliament and it contains a provision which allow claims (called Family Provision claims) to be made against the Estate of a deceased person.  The Succession Act replaced earlier legislation that provided for Family Provision Orders against a deceased Estate. 

There is similar legislation in all States and Territories of Australia but the provisions in those States may be different.  This Article deals with the NSW legislation and Succession Act 2006. 

If you reside in a different State or the deceased died in a State other than NSW, advice should be sought from a legal practitioner in the appropriate jurisdiction. 

Who Can Make Claims Against a Deceased Estate?

Some people may hold the view that it might be inappropriate for a wife, child or perhaps grandchild to make a claim against your Estate.  However contrary to this belief, an ex-spouse or ex-partner can make an Application to the Supreme Court of NSW for a Family Provision Order.  This is called a Family Provision claim. 

Who Can Make the Claim – Who is an Eligible Person?

  1. The following are "eligible persons" who may apply to the Court for a Family Provision Order in respect of the estate of a deceased person:
    1. a person who was the spouse of the deceased person at the time of the deceased person's death;
    2. a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death;
    3. a child of the deceased person;
    4. a former spouse of the deceased person;
    5. a person:
      1. who was, at any particular time, wholly or partly dependent on the deceased person, and
      2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member; and
    6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.

How Long Does an Eligible Person Have to Commence Proceedings for a Family Provision Order? 

An Application for a Family Provision Order must be made not later than 12 months after the date of the death of the deceased person unless the Court otherwise Orders, on sufficient cause being shown or the parties to the proceedings consent to the Application being made out of time. 

When and Why Would the Court Make a Family Provision Order? 

  1. The Court may, on Application under Division 1, make a Family Provision Order in relation to the estate of a deceased person, if the Court is satisfied that:
    1. the person in whose favour the order is to be made is an eligible person, and
    2. in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
    3. at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
  2. The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

Matters to be Considered by Court

  1. The main matters that may be considered by the Court include:
    1. any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;
    2. the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate;
    3. the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered;
    4. the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate;
    5. if the applicant is cohabiting with another person - the financial circumstances of the other person;
    6. any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a Family Provision Order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated;
    7. the age of the applicant when the application is being considered;
    8. any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant;
    9. any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate;
    10. any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person;
    11. whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so;
    12. whether any other person is liable to support the applicant;
    13. the character and conduct of the applicant before and after the date of the death of the deceased person;
    14. the conduct of any other person before and after the date of the death of the deceased person;
    15. any relevant Aboriginal or Torres Strait Islander customary law; and
    16. any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

What Can you Do to Prevent Family Provision Orders Being Made Out of Your Estate – Watson & Watson Advice

As part of a property settlement Watson & Watson advise that to obtain protection from future claims from an ex-spouse or an ex-partner being made against your Estate, it is appropriate to prepare and enter into a Deed of Release under the Succession Act.  Watson & Watson regularly prepare Deeds of Release and in certain circumstances make an application to the Supreme Court for approval of the Orders. 

The absence of a Deed of Release under the Succession Act or Orders approving such releases leaves a person’s Estate exposed to a potential claim.  

Often clients believe that obtaining a divorce and having a property settlement, will prevent any further claims being made against their Estate in the future.  Properly documenting your property division is crucial to averting any future claims being made against your estate by ex spouse or partner.  At Watson & Watson Lawyers our Senior Family Law Solicitors can provide advice and assist you in mitigating any future claims being made against your Estate.  Do not procrastinate, please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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