Why it’s important to tell everyone who might have a claim on an estate
Estate disputes often start because someone wasn’t told they could make a claim.
The recent case of Jurak v Latham [2023] NSWSC 1318 shows why notifying everyone who might have a claim is crucial for fairness … and avoiding family drama.
Imagine this: A loved one passes away, and the family gathers to sort out their affairs. Emotions are high, and everyone assumes things will go smoothly—until someone says, “Wait, I didn’t even know this was happening!” Suddenly, what should have been a straightforward process turns into a stressful dispute.
This scenario happens more often than you’d think. In New South Wales, the law allows certain people (“eligible persons” see below) to make a family provision claim if they feel they’ve been left out or not properly provided for. But here’s the catch: everyone who might have a claim needs to be told about the process, otherwise you may fall foul of the Court and have you own claim placed on hold or worse yet, overturned.
What’s the Big Deal About Notification?
Think of it like planning a family meeting. If you forget to invite someone who has a stake in the discussion, things can get messy later. The same goes for estates:
Fairness matters – People deserve the chance to speak up if they have a legal right.
Avoiding surprises – If someone finds out too late, it can lead to extra court battles and costs.
Keeping things efficient – The law aims to resolve matters quickly and fairly, not drag them out for years.
Who Needs to Be Told?
Under the Succession Act 2006 (NSW), “eligible persons” include:
Spouse/De Facto Partner: The person's spouse or de facto partner at the time of death, including same-sex couples.
Child: Any child of the deceased, including adopted children, and those born posthumously.
Former Spouse: A previous spouse of the deceased.
Dependents: A person (including a grandchild) who was, at any time, wholly or partly dependent on the deceased.
Grandchildren: A grandchild or other person who was a member of the deceased's household and dependent on them.
Close Personal Relationship: Someone living in a close personal relationship with the deceased at the time of death, providing mutual support, even if not a relative.
Purpose
These definitions ensure that individuals with a moral claim on the deceased's estate, but who were not adequately provided for in a will (or by intestacy rules), can seek a court order for maintenance, education, or advancement in life from the estate.
Even if you’re not sure someone qualifies, it’s better to err on the side of caution and notify them.
Checklist for Families Handling an Estate
Identify Eligible Persons
Make a list of anyone who might have a legal claim—spouse, children, dependents, and close relatives.
Gather Contact Details
Use family records, social media, or public searches to find addresses and phone numbers.
Send Formal Notices
Use the official Notice of Claim form or seek legal help to ensure it’s done correctly.
Keep Records
Document who you notified and when. This can protect you if disputes arise later.
Seek Legal Advice Early
A solicitor can help you navigate the process and avoid costly mistakes.
Lessons from the Jurak Case
In this case, a lawyer didn’t notify someone who had previously expressed interest in the estate. The court wasn’t impressed. The takeaway? If you know someone might have a claim, you need to let them know.
Bottom Line
Estate disputes can be emotional and complex. Making sure everyone who might have a claim is informed isn’t just a legal requirement … it’s about fairness and avoiding unnecessary drama.
