Family Provision

Link to:
Succession Act 2006 Deed of Release
Succession Act 2006 (Family Provision)
Who is an elegible person?

Succession Act 2006 Deed of Release     Return to TOP

As a result of your marriage or de facto relationship you and your spouse/partner are eligible persons to make a claim against the other’s estate in the event of that other’s death. This may still be the case even if you have been divorced or if there has been a property settlement between you and the deceased.

By entering into a Deed of Release you can each waive or release your right to make a claim against each other’s Estate, or, on the other hand you can agree to secure a particular provision in the other party’s Will.

Such a document can be a useful adjunct to Binding Financial Agreement or to Consent Orders for final property settlement.

It is important to note that a Deed of Release itself is something that has no legal effect unless and until the Supreme Court formally approves it. However it can be useful in providing evidence of the intention of the parties to the Deed at a particular time should one of them apply to the Supreme Court for provision out of the deceased party’s estate.

Succession Act 2006 (Family Provision)      Return to TOP

If you expected to receive an entitlement or to be a beneficiary of a Will of a parent or other deceased person with whom you had a relationship of some kind or has been a spouse or de facto spouse but you have not been provided for, you may be entitled to make a claim for provision out of the estate of the deceased under the FPA.

Section 57 of the FPA sets out those people who are eligible to seek such relief.

Provided you are one of these eligible persons and an application is made to the Supreme Court of New South Wales within 18 months of the death of the deceased you may obtain an order in your favour for provision out of the deceased person’s Estate.

Who is an eligible person?     Return to TOP

(a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c) a child of the deceased person,

(d) a former wife or husband of the deceased person,

(e) a person:
(i) who was, at any particular time, wholly or partly dependent upon the
               deceased person, and
(ii) 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,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.