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Family provision claims – what you need to know

The loss of a loved one is often a traumatic experience, but if you feel you haven’t been adequately provided for from the estate of the deceased, there are options open to you.

Under the Succession Act 2006, you can make a family provision claim to challenge the current distribution of the estate, provided you are eligible.

Who is eligible for a family provision claim?

Despite the name, you do not have to be a family member to make a family provision claim.

Here is a list of all the people who are eligible to lodge a claim:

·      a spouse (husband or wife)
·      a de-facto spouse
·      child of the deceased
·      child of a de-facto relationship
·      former spouses
·      grandchildren (if wholly or partially dependent on the deceased at any time)
·      dependents (if wholly or partially dependent on the deceased and was a member of the household at any time)
·      close friends (people who are in a close relationship with the deceased at time of death)

Court judgement

When you have decided whether you are eligible or not, your claim will be sent to the courts so they can judge if you have been adequately provided for.

Should the court determine that you have been treated unfairly, they will make an ‘order of provision’, which will outline what provision is suitable based on the specific circumstances of your case and the size of the estate.

A number of factors will be taken into account, including:

·      the financial situation of the claimant, including his or her spouse
·      the financial situations of all other estate beneficiaries
·      any responsibilities or obligations owed by the deceased to the claimant, such as debts
·      existing provisions already made to the claimant, including gifts
·      the relationship between the claimant and the deceased
·      the character and conduct of the claimant
·      any contributions made to the deceased during their life, including house modifications or medical bills
·      any evidence of the deceased’s estate intentions

How long do I have to make a family provision claim?

There isn’t unlimited time to make a family provision claim, so you may want to contact a solicitor as soon as possible to progress your case.

Under the previous Family Provisions Act 1982, individuals had until 18 months after the date of death to make a claim.

However, the Succession Act 2006 has reduced this timeframe, giving claimants only 12 months.

The court may choose to extend this if sufficient cause is shown, but this is rare.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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