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Family Provision Application and Claim

Overview

Are you a beneficiary left out of a will?

The death of a family member is always a tragedy. Discovering that you’ve been excluded from their will can be an added blow during an already challenging time. The will and the estate planning process can be complicated, yet being excluded from a family member’s will can feel personal.

If you believe you’ve been unfairly left out of a will or you are a dependent or beneficiary who has not been provided for adequately, filing a Family Provision claim is the next step.

The legal team at Gerard Malouf & Partners can be there to assist you and your family, taking some of the challenges out of an already emotionally trying time and getting you the compensation you deserve. Our lawyers work on a “no win no fee” basis, so you know that you’re making the right decision in advocating for yourself.

35
Years Experience
Winning successful cases for our clients.
98%
SUCCESS RATE

Winning Family Provision Claims

35,000
CLAIMS WON

That translates to billions of dollars for our clients.

Process

What is a Family Provision Claim?

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.

A Record Of Success

Gerard Malouf and Partners has an established track record of handling Family Provision Claims with the sensitivity and professionalism they deserve while helping our clients receive the benefits they’re due.

Man reunited with his father and gets left off the wills estate

In one recent case, an adult son who had not been provided for by his deceased father was able to successfully contest his father’s will and receive $75,000. While our client had no relationship with his father for the first 20 years of his life, the two had bonded later in life, after the son was finally able to locate his father. Our client also grew very close with his half-brother, whose existence he discovered when he finally met his father.

Being left out of his father’s will after this long reunification process hurt our client deeply. Our legal experts felt that an injustice had been committed and agreed to help the man on our “no win, no fee” family law basis.

At the behest of our client, our team drew up an affidavit with evidence of the relationship between the father and son, as well as information about the son’s current financial state. While the deceased estate disputed the amount of compensation that our client should have been eligible for, our team was able to negotiate a large lump sum in an amount that was satisfactory to him and his wife.

Inadequate provision from a deceased family member

In another recent case, our legal team was able to help a man who had received a portion of his late mother’s estate but at a rate far lower than satisfactory. The man had spent many years caring for his aging parents and doing renovation work on the family home.

As a result, he was left under the impression that he would inherit the property after his parents’ death. Instead, our client was dismayed to discover that he had only been left with a family provision of 8% of the estate, with the rest going to his two sisters who had contributed less to his parents’ care during their lifetime. Hurt, and looking for options, the man turned to the legal professionals at Gerard Malouf & Partners.

On our client’s behalf, we entered into mediation with the deceased’s estate, who countered that our client had been provided with large sums of money during his parents’ lifetime, and owed the estate approximately $600,000. Through mediation, we were able to extinguish our client’s debt entirely and then earn him a share of the profit from the sale of the home he had worked so hard on for years.

While the process was extremely bitter, we stood by our client and delivered for him as promised. If you require assistance with a Family Provision Claim, reach out to the experts at Gerard Malouf & Partners today.

Contesting Wills

Contact us for no-obligation, legal advice about your family provision claim.

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Contesting Wills
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