Family provision claims
03 Apr 2019
- Wills & Estates
What can you do if you’ve been left of a will, or haven’t received what you thought you were entitled to in a will?
If you’re an ‘eligible person’ you may be able to make a family provision claim. In this article Helen Phelps explains who might be an eligible person and some of the ins and outs of family provision claims.
What is a family provision claim?
Each Australian state and territory allows eligible persons who’ve been left without adequate provision for proper maintenance, education and advancement in life to make an application to receive provision from the deceased’s estate. An application can be made by an eligible person who hasn’t been adequately provided for by a will, or who hasn’t received adequate provision under intestacy (i.e. where there is no will).
Who can make a family provision claim?
Determining who can make a claim depends on the law of the state or territory in which the claimant seeks to make their application.
In the ACT the following people may be entitled to make an application:
- the deceased person’s
- a person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 or more years continuously at any time
- a stepchild maintained by the deceased person immediately before their death
- a grandchild who wasn’t maintained by their parents immediately before the death of the deceased person
- a parent maintained by the deceased person immediately before their death.
In NSW the pool of eligible people is wider and includes:
- a person who was a spouse of the deceased person at the time of their death
- a de facto partner at the time of deceased person’s death
- a child of the deceased person
- a former spouse of the deceased person
- a person
- who was, at any particular time, wholly or partly dependent on the deceased person
- who is a grandchild of the deceased person or was, at that particular time or any other time, a member of the household of which the deceased person was a member
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Successful claims have previously been made by people is a range of relationships. These include spouses, de facto partners, fiancés, separated partners, former partners, biological children, stepchildren, foster children, parents, cares, grandchildren and people in a close personal relationship with the deceased.
There have been a number of changes to the categories of eligible claimants over the last few years. Therefore, it’s important to be mindful that the persons who are eligible can and likely will change!
I think I’m eligible, what next?
If you’ve established that you’re an eligible applicant, the Court may make an order that the estate distribution (including the nominal estate in NSW) be altered to make provision that the Court thinks fit. The Court will only make this order if it’s satisfied that adequate provision for proper maintenance, education or advancement in life isn’t available. In making this decision, the Court will consider:
- the character and conduct of the applicant, as well as their relationship with the deceased
- financial and non-financial contributions made by either party to the other party
- financial and non-financial contributions made by either party to the child of the other party
- the income, property and financial resources of both parties, as well as the financial needs and obligations of both parties
- the physical and mental capacity of both parties
- any other matter the Court considers appropriate.
The Court will consider the details of each matter and make the decision it considers appropriate.
How do you make a claim?
You can make a claim by filing an application in the Supreme Court of the jurisdiction in which you wish to make a claim. Strict time limits apply to these applications; if you believe you may be entitled to make a family provision claim you should seek legal advice urgently.
When do I make a claim?
You can only make a family provision claim on the estate of someone who has died. Current time limits vary between jurisdictions and are as follows:
ACT: A claim must be made within 6 months of the date of the grant of representation.
NSW & NT: A claim must be commenced within 12 months of the date of death.
VIC, WA & SA: A claim must be made no later than 6 months from the date of the grant of representation.
QLD: Notice must be given to the executor/administrator before commencing a claim no later than 9 months from the date of the grant of representation.
TAS: A claim must be made no later than 3 months from the date of the grant of representation.
The Court has discretion to grant an extension of time if it’s satisfied there’s sufficient reason for the delay. The Court will also consider the impact that the extension will have on the parties involved, the conduct of the parties and the overall strength of the intended family provision claim.