Planning for death is generally an issue that is neglected by many Australians. Around 40% of Australians die each year without a will and many of the remainder die with wills that do not reflect their current needs. Estate planning is often left by people until it is too late.
There are legal issues that must be taken into account when you are considering your estate and financial plans. How you structure your will, the appointment of Trustees, how your estate is distributed and the appointment of guardians for any children are all vital issue that should be addressed in your will.
There may be circumstances where trust should be established after your death or life interest created.
Family Provision Act Claims and Estate Disputes
Family Provision Act claims
A family claim is an application to the Supreme Court for an order for provision to be made out of an estate for a person’s maintenance, education and advancement in life. Under s 57 of the Succession Act 2006 (NSW) the following people can make a claim:
- The wife or husband of the deceased when the deceased died;
- A person in a de-facto relationship with the deceased when the deceased died;
- A child of the deceased;
- Former husbands and wives of the deceased;
- A person:
- Who was, at any particular time, wholly or partly dependant on the deceased, and
- 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; or,
- a person who was living with the deceased in a close personal relationship at the time of death.
S 58 of the Succession Act 2006 (NSW) requires that a claim must be brought within 12 months of the death of the deceased. However, The Court may permit a claim to be brought after 12 months if the claimant can demonstrate ‘sufficient cause’.
A death in a family commonly causes a dispute between those who may have a beneficial interest. Disputes can occur for a variety of reasons, including but not exclusive to: misappropriation or negligent handling of trust funds by the executor(s); problems between family members or beneficiaries; and, other persons who believe they have a good claim for estate assets.
Estate disputes can be complex, costly and emotionally draining if they are not handled correctly.
At KPL Lawyers, we provide outstanding legal services to our clients by combining consistent, rigorous analysis with astute judgment to obtain the optimum result and a highly personalised service to all of our clients.