Family Provision Claims

Family Provision Claims

Family Provision Claims

Find out more about family provision orders, who is eligible to make a claim, what factors the court considers and the process to make an application.

When someone dies and leaves a will, sometimes an eligible person may not believe they are adequately provided for. In these circumstances, the law enables these people to apply for a family provision order and challenge the validity of the will. There are essential factors that the court will consider when filing a claim. Let’s take a closer look.

What Is A Family Provision Claim?

When someone feels like they have been left out of a will or not adequately provided for as a beneficiary, they are legally entitled to make an application for a family provision claim. The claim is made under the state Succession Act to the Supreme Court. Only an eligible person is allowed to make a claim, and the court will consider factors to determine whether they are entitled to a larger share of the deceased person’s estate.

An application for a family provision claim can be made before probate or letters of administration have been granted, and there are timeframes that apply.

A provision, when granted, will be agreed upon between the parties and can either be a lump sum payment, rights to a property, or an ongoing sum of money paid from a trust.

Who Can Make A Family Provision Claim?

The Succession Act legislation in each state defines who is classified as an eligible person and therefore entitled to submit an application for a family provision order. Eligible persons will generally be either family members or dependents of the deceased.

State legislation defines who is an eligible person, and they must be one of following:

  • Wife or husband
  • De facto partner
  • Biological or adopted child
  • Former spouse
  • A person who was either entirely or partly dependent on the deceased person
  • Grandchild
  • Member of the deceased’s household
  • Someone who was in a close personal relationship (not marriage or defacto relationship) a dependant providing personal support or care

Upon a deceased person’s death, a dependant must prove that they were either fully or partially supported by the deceased. In most cases, a dependant would be a parent or person under 18 years old.

What is The Process For Making A Family Provision Claim?

The process for making a family provision claim will differ from state to state. In NSW, an applicant will provide documents with a supporting affidavit and file a summons to the Supreme Court. The court should be satisfied that the person seeking family provision is eligible and has not already received an adequate provision, education, or advancement by the deceased person’s will.

The affidavit needs to explain why they are entitled to make a claim. It should refer to other people affected if the provision is granted. Evidence supporting the applicant’s position and financial position should also be specified.

Mediation

Parties are recommended by the court to engage in mediation before making a family provision claim to help resolve the dispute and reach a settlement independently. It will save a lot of time and money and avoid the need to go to court.

After an application has been filed, and if the matter has not successfully been resolved through mediation, then the case will be listed for a court hearing.

The time frame from application to a court hearing can be one to two years.

A family provision claim will delay the distribution of the deceased estate to beneficiaries.

What Factors Are Considered?

Just being an eligible person does not guarantee that provisions from the estate will be provided. They must demonstrate that they were not adequately provided and what provisions would be appropriate. The court assesses each case individually, and critical factors are considered, including:

  • The duration and nature of the relationship between the deceased person and the applicant
  • Any responsibilities or obligations owed by the deceased to the applicant
  • Wishes of the deceased
  • Location and value of the deceased person’s estate
  • Applicants’ financial circumstances, earning capacity and future needs
  • Physical intellectual or mental capacity of the applicant
  • Applicant’s age
  • Contributions to the estate, either financial or conservation and improvements to increase value from the applicant
  • Support, maintenance or financial assistance to the applicant from the deceased person during their lifetime
  • Whether the applicant is financially supported by someone else
  • Applicant’s character, conduct and relationship with the deceased person
  • Other competing claims on the estate
  • Customary laws if the deceased person was Torres Strait Islanders or Aboriginal
  • Other matters the court considers relevant

What Are The Time Limits For Filing Family Provision Claims?

Time limits to submitting a claim vary depending on which state the deceased person lived. For example, in New South Wales, family provision claims must be submitted to the court within twelve months after the deceased’s death. In exceptional circumstances, the court may provide an extension, considering reasons for the delay and the specific circumstances of the deceased person’s estate.

In other states such as Queensland, a family provision claim must be submitted within nine months after the death. Therefore, it is crucial to obtain professional legal advice relevant to the deceased person’s state.

Can A Family Provision Claim Be Made When There Is No Valid Will?

When a deceased person has died intestate, the estate will be distributed according to state intestacy rules, rather than as stated in the last will. This means that the surviving spouse has priority over the estate before any other family members. The court will appoint an administrator, and letters of administration will enable them to distribute the assets of the deceased’s estate. The applicant will need to be an eligible person, and the family provision claim will be managed similarly to that of a deceased person with a will.

Who Pays For The Family Provision Claim?

Legal costs for a family provision claim are usually paid from the deceased’s estate. In some cases, if your application is unsuccessful, you may be ordered by the court to pay all of your legal expenses in addition to other legal costs incurred by the defendant. It is crucial, therefore, to make sure your case has merit and genuine prospects of success before challenging a will.

If an executor is making an application for a family provision claim, they are entitled to an indemnity from all respective fees, as they will be taken from the assets of the deceased person’s estate.

Experienced state lawyers can provide specific legal advice in court matters relating to family provision proceedings. Before submitting a family provision application, it is recommended that matters be resolved via mediation, as going to court can be expensive, mainly when the applicant is unsuccessful.

Summary

When someone does not receive what they think they are entitled to, they can apply to the court to obtain an increased share of the deceased estate. The claim is made to the Supreme Court, and only an eligible person can make a family provision claim. A qualified person will generally be either a family member or dependent on the deceased person. The Supreme court will need to be satisfied that the person is eligible and has not already received an adequate provision, education or advancement by the deceased’s will. Just being a qualified person does not guarantee that provisions from the estate will be provided. The court will assess each case individually, and critical factors are considered, such as the applicant’s relationship with the deceased person, their conduct and financial circumstances.

The process for making a family provision claim will differ from state to state, and time limits to submitting a claim vary depending on which state the deceased lived.

Experienced estate lawyers can provide detailed legal advice in all matters relating to a family provision application. Before submitting a family provision application, it is recommended that matters be resolved via mediation, as going to court can be expensive, mainly when the applicant is unsuccessful.

FAQs

1. What Is Family Provision?

When someone feels like they have been left out of a will or inadequately provided for as a beneficiary, they are legally entitled to make an application for a family provision claim. Only an eligible person can make a claim, and the court will consider factors to determine whether the individual is entitled. When someone does not receive what they think they are entitled to, they can apply to the court to obtain an increased share of the deceased estate.

A provision, when granted, will be agreed upon between the parties and can either be a lump sum payment, rights to a property, or an ongoing sum of money paid from a trust.

2. Who Is Eligible to Make A Family Provision Claim?

Legislation in each state defines who is classified as an eligible person and entitled to make a family provision order. In each case, eligible persons will be either a family member or dependent of the deceased person. In most cases, a spouse, child (biological or adopted child) or dependant. It could also be someone who was partly dependent, in a close personal relationship, a former wife, or a de facto relationship. Upon the deceased person’s death, the dependent person must prove that they were either fully or partially supported by the deceased. In most cases, a dependant would be a parent or person under 18 years old.

3. Who Pays For A Family Provision Claim?

Legal costs for a family provision claim are usually paid from the deceased’s estate. In some cases, if your application is unsuccessful, you may be ordered by the court to pay all of your legal expenses in addition to other legal costs incurred by the defendant. You should ensure that your case has merit and genuine prospects of success before challenging a will, as court proceedings can be expensive, mainly if they are an unsuccessful claimant. Before submitting an application, it is recommended that matters be resolved via mediation, as court can be expensive, mainly when the applicant is unsuccessful.

If an executor is making an application for a family provision claim, they are entitled to an indemnity from all respective fees, as they will be taken from the assets of the deceased person’s estate.

Related articles
Intestate Law in NSW
Intestate Law in NSW

Find out more about intestacy laws in New South Wales, who is an eligible beneficiary of an intestate estate and Read more

Contest A Will In NSW
Contest A Will In NSW

There are several reasons someone might challenge a will in NSW. The main reason is that someone believes the person Read more

Probate Records NSW
Probate Records NSW

Find out more about probate records in NSW, where they are stored, who has access to the files, as well Read more

Reading Of A Will
Reading Of A Will

Find out what happens after death if you have a will, the process involved, and the benefits of having a Read more