A Family Provision Claim is a method of disputing a will in court. You are eligible to submit a Family Provision Claim if you are related to the deceased or had a close relationship with them and have a demonstrated financial need that the deceased had a moral obligation to meet. As the specifics of these cases can vary widely, the best way to know if you are an eligible person is to seek legal advice from an established lawyer who specialises in disputing wills.
Some of the factors a court may take into consideration when deciding on a Family Provision Claim case include:
Your overall financial need: This is possibly the most important factor in these cases. In Australia, the deceased has an obligation to provide adequate provisions to their dependents — if funds exist. Establishing that you are a dependent of the deceased, and would be placed under financial burden if not provided for, goes a long way in a favourable decision.
Examples of eligible persons include:
- Child, stepchild, adult child
- Spouse, former spouse
- Domestic partner or de facto relationship
- Enduring guardian
- Any blood family member
If you live in New South Wales, the Succession Act of 2006 outlines who can make a provision for the distribution of the interested estate. You must identify yourself as an eligible person and notify the registrar that they must cease distributing the estate (known as an estate caveat) until an agreement can be reached.
Your relationship with the deceased: Simply establishing that you are an eligible person to contest a will, is not a guarantee of a favourable ruling. A plaintiff must usually demonstrate some kind of relationship with the deceased that would suggest that they would require adequate provision from the deceased.
Any obligations the deceased may have owed you: If the deceased has some kind of debt to you that was left unpaid during their lifetime, a settlement with their estate may be possible. This is also true if you have provided a large amount of care or labour for the deceased during their lifetime.
Your financial circumstances compared to other beneficiaries: This becomes a factor if your financial need is significantly greater than the others named in the will, or if the estate is large enough to provide funds to you without greatly affecting the share of the other beneficiaries named in the will.
Any physical, intellectual or mental disability you may have: If you are disabled, it may build your case that you were a dependent of the deceased, as your disability may impact your ability to provide fully for yourself.
It is important to note that family members only have a small window of time to submit Family Provision Claims in court. The time limit varies by state and ranges from 12 months in New South Wales, to only six months in Victoria and the Australian Capital Territory.
The process of filing Family Provision Claims depends on where in Australia you live. In most states, like New South Wales and Victoria, you must file a claim with the Supreme Court of your state notifying them of the motion.
Handling legal motions while still in the grieving process can be difficult. Working with the experts at Gerard Malouf & Partners can help.
