What is a family provision claim?

What is a family provision claim?

By cropped Clara Suki

· Read time: 7 minutes

Family Provision Claims are legal actions initiated by individuals who believe they have been unfairly left out of a deceased person’s will or left in an inadequate position following a person’s death. 

A family provision claim can only be made by an “eligible person”, and determining whether someone falls into this definition will change based on the legislation of the particular state or territory where the claimant lives.  

Who can make a Family Provision Claim?

These individuals are typically family members or dependents of the deceased, and they have the right to challenge the distribution of the estate if they can demonstrate that the will doesn’t adequately provide for their proper maintenance, education, or advancement in life.

NSW legislation determines that an eligible person who can make a family provision claim includes: 

  • A person who was the spouse of the deceased individual when they died 
  • A person who was the de facto partner of the deceased individual when they died 
  • A former spouse of the deceased individual 
  • A child of the deceased individual 
  • A grandchild of the deceased individual
  • A member of the deceased individual’s household, whether at the time of death or any other previous time
  • A person who had a close and personal relationship with the deceased individual at the time of their death
  • A person who was either wholly or partly dependent on the deceased individual 

It is notable from this list that separated partners, former partners, biological children, foster children, stepchildren and carers are all included in what constitutes an ‘eligible person’. 

This means that there are potentially many people who can make a family provision claim in NSW once someone passes away. 

What must be proven for a family provision claim to succeed? 

For a family provision claim to succeed, the claimant must demonstrate:

1 That they belong to an eligible class of persons who can make a family Provision Claim

  • The claimant’s relationship with the deceased person, as per the relevant state or territory legislation (see above).

2 Whether they are entitled to have the Court make an adjustment to the will and estate. 

The Court  will consider whether what they have received or not received under the current estate distribution is enough for the adequate provision for proper maintenance, education or advancement in their life. 

In determining whether inadequate provision has been received, the Court will look at factors such as:

  • The conduct and character of the claimant 
  • The age of the claimant 
  • The financial and non-financial contributions made by each party to each other 
  • The financial resources of both parties (including income, property and other financial resources)
  • The mental and physical capacity of both parties 
  • Whether any other individual is financially supporting the claimant
  • Any relevant customary law if the deceased was an Aboriginal or Torres Strait Islander person
  • Any other factor that the Court deems appropriate to consider. 

The Court will then weigh all factors it considers appropriate and make its decision. 

If the claimant is successful, the Court will have the power to change the current estate distribution to make adequate provision for the claimant. 

Can an Executor make a claim?

Usually, the executor serves as the defender of a deceased estate when faced with a Family Provision Claim. 

However, in cases where the executor also qualifies as a rightful beneficiary, they may, under specific circumstances, initiate a claim against the estate.

How to Make a Family Provision Claim in the Courts

Making a Family Provision Claim involves a structured legal process. 

If an individual is an eligible person, they can choose to make a claim by filing an application with the Supreme Court of NSW. It is important to note the time limits to these applications. 

Claimants typically need to provide evidence to support their claim. This can include financial records, documents highlighting the relationship with the deceased, and any other relevant information. 

It’s crucial to consult with legal professionals who specialise in estate litigation to navigate this process effectively.

Time limits with Family Provision Claims

Like most legal matters, there are time constraints associated with Family Provision Claims. 

In Australia, the time limit for making a claim varies from state to state. 

In NSW, the law requires that a family provision claim has to be made within 12 months after the death of the deceased. It is recommended that an individual who believes they are eligible for a family provision claim to get legal advice immediately to ensure that they are able to submit their application within this time limit. 

Can a Family Provision Claim be made if the deceased did not leave a will?

Yes, a Family Provision Claim can still be made even if the deceased did not leave a will. 

The allocation of assets within an intestate estate can be subject to challenges from various parties. These include dependents of the deceased who may have valid moral or justifiable claims, as well as organisations or individuals for whom the deceased was reasonably expected to have made provisions. 

Additionally, if the deceased had affiliations with charitable organisations, such entities also possess the right to make claims on the deceased’s estate.

What are costs in a Family Provision Claim?

Engaging in a Family Provision Claim can be a costly endeavour. Legal fees, court costs, and other expenses can quickly add up. 

In the event of a successful claim, the court typically mandates the estate to bear party/party costs or ‘ordered’ costs. These costs usually encompass approximately 70% of your solicitor/client expenses. The remaining portion will be your responsibility to cover from your designated portion of the estate.

Conclusion

As you can see, Family Provision Claims are a complex legal aspect of estate distribution in Australia. 

Understanding the intricacies of who can make a claim, what courts consider, and the various factors involved is crucial for both potential claimants and those planning their estates. 

To navigate this legal terrain effectively, it’s advisable to seek professional legal advice and engage in thorough estate planning. Ultimately, the goal is to ensure a fair and just distribution of assets while preserving the wishes of the deceased.

FAQs

Are there alternatives to making a family provision claim?

Making this type of claim is a difficult choice and it is likely one that is uncomfortable for many family members. An individual who finds that the process of making a family provision claim confronting can choose instead to participate in mediation. 

Mediation is the process by which two parties and a neutral mediator can attempt to negotiate an outcome favourable to both parties. It is a more time and resource efficient process and can preserve the relationship between family members. 

How do I avoid a Family Provision Claim?

To avoid the possibility of a Family Provision Claim, it’s essential to engage in comprehensive estate planning. 

This may include clearly outlining your intentions in your will, providing for family members and dependents, and seeking professional legal advice to ensure your wishes are legally sound.

What should I consider when writing a will?

The family provision laws in NSW show that it is important for individuals to properly provide for their immediate family and other important relatives in their will when they pass away. 

If an individual chooses not to do so, they should keep in mind that an eligible person can make a claim and that the Court will have the power to overrule the estate distribution written in a will. 

Can a parent leave everything to one child in Australia?

In Australia, parents generally have the freedom to distribute their assets as they see fit in their wills. However, if a child believes they have been unfairly excluded or inadequately provided for, they may have grounds to make a Family Provision Claim. It’s crucial to balance your wishes with the potential for such claims when estate planning.

If you need any assistance regarding a family provision claim, please feel free to contact Movement Legal.

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