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

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

How Vicissitudes Impact Future Economic Loss in Legal Cases

When it comes to calculating future economic loss in legal cases, one concept that often arises is "vicissitudes." But what exactly are vicissitudes, and how do they affect the compensation awarded to plaintiffs? In this article, we'll delve into the definition of...

Can you still make a claim?

Many claims have limitation periods. A limitation period is a set time frame within which an aggrieved person must commence proceedings in a Court. These limitation periods generally commence from the date of the injury and/or incident. Some claims however, such as...

Teacher convicted for failing to report sexual abuse of a child

Teacher, Mr Webb of Trinity College Perth, was unsuccessful in his appeal against his conviction of failing to report sexual abuse of a child in a decision delivered on 13 October 2021. In April 2017, a group of boys from the school went on a school rugby trip to...

Annual Dinner – Parramatta & District Regional Law Society

Western Sydney's legal profession gathered for the Annual Dinner of the Parramatta & District Regional Law Society at CommBank Stadium! We are particularly grateful to Dr Hugh McDermott MP, Parliamentary Secretary to the Attorney General, Senior Vice...

What compensation can I get if I have been injured at work?

If you have a work-related injury or illness, you may be able to claim compensation for lost income, medical expenses, travel expenses, domestic assistance, pain and suffering and permanent impairment. All employers are required to have workers compensation insurance...

Court makes provision for son left out of father’s Will

The recent Supreme Court of New South Wales decision of Rathswohl v Court  NSWSC 356, involved 3 siblings disputing their entitlements to their late father’s estate. The defendant, Yvette, claimed she cared for her father for the last 18 months before he...

If I die without a Will what can happen?

If you die without a Will there can be many unintended consequences. Some of these consequences may be: A person who you do not intend could control your estate.  This could even be someone you do not know.  An executor is a person who controls an estate...