A family provision claim proceeds on the basis that the deceased’s will is valid. So what are the formal requirements for a valid will, and what happens if they are not complied with?
Under the Succession Act, a person may waive their right to bring a family provision claim against a deceased person’s estate. However, any such waiver will only be legally binding if the court approves it.
A prenup, or a Binding Financial Agreement (BFA) as they are known in Australia, will usually include a clause providing that either or both parties give up their right to make a family provision claim. But do these clauses actually prevent your partner, or former partner, from claiming family provision?
It is common for testators to transfer property or assets to their intended beneficiaries prior to their death, in an effort to avoid any potential challenges to their will. The logic being that an applicant will be unable to challenge the will where the estate has no real value. However, in NSW transferring your assets before your death will not necessarily prevent a family provision claim from being made against your estate and in particular circumstances the court may make a Notional Estate Order.