A common misconception that we encounter is people being left out of their loved one’s Wills and thinking they cannot do anything about it.
However, this is not the case.
Whilst people can prepare a Will stating who will inherit their estate on their passing, should the Will fail to take into account a spouse, child, de facto partner or dependent, then that person is able to contest the Will and apply to the Supreme Court and make a Family Provision Claim.
What is a Family Provision Claim?
A Family Provision Claim is an application to the Supreme Court seeking a share or a further provision of the deceased person’s estate.
However there is certain criteria to satisfy in order for you to be an ‘eligible person to make a Family Provision Claim. Those people who are eligible to make a claim are listed below
- Spouse or de-facto partner of the deceased
- Child of the deceased
- Any person who was dependent on the deceased
- A grandchild who was dependent on the deceased
- A person who was living in a close personal relationship at the time of the
deceased’s death
What factors are taken into account by the Court?
Should you be an eligible person, the Court may consider the following matters;
- the relationship between you and the deceased including the nature and duration of the relationship
- The nature and extent of any obligations or responsibilities owed by the deceased to you or any other beneficiary of the deceased’s person’s estate
- the value of the deceased person’s estate
- your financial circumstances and needs, both present and future as well as any other beneficiary of the deceased’s person’s estate
- if you are living with another person –the financial circumstances of the other person,
- if you suffer from any physical, intellectual or mental disability
- your age
- any contribution (whether financial or otherwise) by you to the deceased person
- any provision made for you by the deceased person
- any evidence of the testamentary intentions of the deceased person.
- whether you were was being maintained by the deceased person
- whether any other person is liable to support you
- your character and conduct before and after the date of the death of the deceased person,
- the conduct of any other person before and after the date of the death of the deceased person,
- any other matter the Court considers relevant.
Does this sound like you?
If you are an eligible person and you have either been left out of a Will or have not received adequate provision, please contact us so we can advise whether you have a claim.
Time limits apply
You only have 12 months from the date of the deceased’s person death to make a Family Provision Claim, therefore it is paramount you contact us as soon as possible so we can advise you appropriately.
Defending a Will?
If you are an Executor and someone has made a family provision claim against the estate, we can assess the merits of the claim and provide you with expert advice to settle the matter as soon as possible and minimise costs incurred by all parties.
The team at Ignify Legal have comprehensive experience in estate litigation matters and are best placed to assist you.
