What property can be used for a family provision order?

Sep 14, 2023 | Publication

If certain categories of persons are left out of a Will or inadequate provision is made for them in a Will or by way of intestacy, such person may be entitled to bring a claim on the estate.

This begs the question what property can be used to satisfy such a claim by order of the Court?

Under section 63 of the Act, a family provision order may be made in relation to the estate of a deceased person.

If the deceased person died leaving a will, the estate includes property that would, on a grant of probate, vest in the executor.

A family provision order may not be made in relation to property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of section 93 (which deals with distribution after notice is given), except as provided by subsection (5) of section 63.

A family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person.

For legal advice regarding your rights and responsibilities please contact McAuley Lawyers on (02) 9633 1826 or email reception@mcauleylawyers.com.au

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