Family Provision

Link to:
Family Provision Act Deed of Release
Family Provision Act NSW 1982
Who is an elegible person?

Family Provision Act Deed of Release     Return to TOP

As a result of your married 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 beforehand 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 a Pre-nuptial Agreement or to a Domestic Relationships 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.

Family Provision Act NSW 1982 (and some other states) (“FPA”)     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 6 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:
(i) who was the wife or husband of the deceased person at the time of the
               deceased person’s death, or
(ii) with whom the deceased person was living in a domestic relationship
               at the time of the deceased person’s death, or

(b) a child of the deceased person or, if the deceased person was, at the time of his or her death, a party to a domestic relationship, a person who is, for the purposes of the Property (Relationships) Act 1984 , a child of that relationship, or

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

(d) 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;
(iii) who was, at that particular time or at any other time, a member of a
               household of which the deceased person was a member.