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Wills are usually very straightforward. An executor distributes a deceased’s assets to their named beneficiaries. However, family provision claims allows for family members to claim from a will when they feel like they have been inadequately provided for.
What Are Family Provision Claims?
A Family Provision Claim allows a family member of the deceased to claim a part of or a larger part of the deceased person’s estate. In particular, these claims have become increasingly useful with the trend of longer life expectancies and higher rates of divorce.
Who Can Make This Claim?
In order to make this claim you need to:
- Be an ‘eligible’ person, and
- Believe that you have not been adequately provided for.
An ‘eligible person’ as defined by s57 of the Succession Act 2006 is a:
- Spouse of the deceased;
- De-facto partner of the deceased;
- Former spouse of the deceased;
- Child of the deceased (including stepchild and adopted child);
- A dependant of the deceased;
- A grandchild of the deceased;
- A person who was a member of the deceased’s household; AND
- A person who the deceased had a close personal relationship with at the time of death.
In addition, with regards to ‘close personal relationship’, the court has considered the providing of personal care and support out of good will to be sufficient.
Similarly, your relationship might not be listed entirely. (e.g. parents). You may still be eligible under condition 7.
What Will the Court Consider
The test for ‘adequate provision’ is a bit more complex. Therefore, the court will consider a number of factors in making orders for a Family Provision claim. However, these factors can vary state by state and usually take in consideration the nature of your finances and your relationship. For instance in NSW, s60 of the Succession Act includes:
- Any family/other relationships between the applicant and the deceased;
- The nature and extent of any obligations owed by the deceased to the applicant;
- The nature and extent of the deceased’s estate;
- Financial resources and needs of the applicant;
- The financial circumstances of any person the applicant is living with;
- Any physical, intellectual or mental disability of the applicant;
- The applicant’s age;
- The applicant’s inappropriately compensated contributions to the deceased’s estate or welfare;
- Any provision made for the applicant by the deceased;
- Any evidence of testamentary intentions (i.e. in a will or statement) of the deceased;
- Whether the applicant was being wholly or partly maintained by the deceased;
- Liability of any other person to support the applicant;
- The character and conduct of the applicant;
- The conduct of any other person;
- Any applicable Aboriginal or Torres Strait Islander customary law; and
- Any other matter the Court considers relevant.
These factors are relatively vague and complex. If you are unsure as to the success of your claim you should contact our lawyers.
Time Limits
Importantly, a family provision claim must be made within 12 months after the deceased’s death. After that point claims would be ineligible. However, you do not need to have a grant of Probate or Letters of Administration.
While rare, there have been notable cases wherein the time limit has been extended. In deciding whether to give an extension, courts consider:
- Reasons for lateness of the claim;
- If you would’ve been unfairly prejudiced;
- Whether there was any unconscionable conduct;
- What the strength of your claim is.
How to Make a Claim
The procedure for making a claim can vary state by state. In NSW, an application for a family provision claim is made by filing a summons together with an affidavit in the Supreme Court of NSW.
Summary
Family provision orders can be claimed if you are an eligible family member and you feel like you’ve been inadequately provided for. Such claims need to be filed within 12 months of the deceased’s death. If you are unsure of the procedure, get in touch with our lawyers at 1800LAWPATH.
