Sometimes, a relative of yours may have passed away ‘intestate’ meaning they did not write a Will prior to their death. If this is the case, their estate will be distributed according to a set formula, with one of the deceased’s relatives required to apply for Letters of Administration to manage the estate.

Intestacy is a common occurrence, with the NSW Parliament estimating around 40 per cent of the state’s population currently dying without leaving a Will.

In this situation, it is still possible for individuals to contest the will if they did not receive a share of the estate under NSW’s intestacy laws.

The main beneficiaries in a case of intestacy are the deceased’s spouse – either through marriage or a de facto relationship – and their ‘issue’, which can include children or grandchildren. If neither of these groups exist, the estate may be distributed to parents and other relatives of the deceased.

Because the intestacy laws work in a set manner, there may be specific circumstances where individuals do not receive a suitable share of the estate. In other situations, individuals may not receive any share of the estate despite being eligible.

What are the conditions for making a family provision claim?

To make a family provision claim, individuals will first need to meet the eligibility criteria. There are six categories of people who are eligible to make a claim, including:

  1. A husband or wife
  2. De facto partners
  3. Children
  4. A former husband or wife
  5. Those who are dependent on the deceased or a member of their household
  6. Those living in a close personal relationship with the deceased

While a number of these groups are already part of the equation used in a case of intestacy, groups like a former husband or wife may not have received any provision and therefore might be eligible to make a claim.

As well as meeting the eligibility criteria, individuals will also need to demonstrate that the deceased had an obligation to provide for the ongoing care of the applicant and that this isn’t reflected in the existing distribution. This will involve demonstrating the relationship they had with the deceased and also their current financial position.

Time limits apply when it comes to pursuing a family provision claim, so it’s important that individuals who want to take this action contact a contesting wills lawyer promptly to assess their options. They will be able to advise on your eligibility and assemble a case that can help you claim a share of a deceased’s estate, even in a case of intestacy.