3 things to ask yourself
Every Australian State and Territory has legislation which allows an eligible person to bring a Family Provision claim for provision or greater provision from an estate.
Before you decide to make a claim, there are 3 things you should ask yourself:
1. Am I eligible to make a claim?
Before making a family provision claim, you must ensure you fall within the definition of an ‘eligible person‘ or ‘eligible applicant’ within the jurisdiction. In the ACT, you must fall into one of the following categories:
- The spouse (including former spouse and de facto spouse), civil union partner or civil partner of the deceased person;
- A person in a domestic partnership with the deceased continuously for 2 or more years;
- A child (including adopted) of the deceased person;
In certain circumstances, a stepchild, grandchild or parent of the deceased person will also be considered an eligible person.
2. Am I within time to make a claim
Every jurisdiction has different time limits within which a family provision claim must be brought.
In the ACT, a claim must be made within 6 months after a grant of probate or letters of administration has been obtained. In NSW, the time limit is 12 months from the date of death of the deceased person. In certain circumstances the Court may grant an extension of time.
3. Do I have a need for greater (or any) provision and have I received ‘adequate provision’?
The answer to these question will determine the strength of your case. Unless it can be established that you have a ‘need’ for some provision from the estate, your claim will not regarded as strong.
The Court will take into account a number of factors in determining whether an applicant has ‘need’ for greater (or any) provision from the estate and whether ‘adequate provision’ has been made. These factors include your financial and non-financial circumstances, the size of the estate and the deceased’s moral duty to make provision.
If there is no Will, the estate will pass to beneficiaries in accordance with the rules of intestacy, which may not provide adequate provision.
If you believe you have a claim against an unfair Will, contact us and speak to one of our Estate Dispute experts.