A family provision claim is where a person applies to the court and says that they have not been adequately provided for in the Will of a person who has passed away. If a claim is successful, the court can change the Will and how the deceased persons’ assets are distributed.
Who can make a claim
The category of persons who can make a family provision claim is broad and includes:
- Former spouses;
- De facto partners;
- Grandchildren; and
- Any other person who was living with the deceased at the time of their death and had a close personal relationship with them.
Who is the claim bought against?
Any claim is not bought against the deceased person, but rather their estate. The claim is defended on behalf of the deceased persons’ estate by the executor of the deceased persons’ Will.
If you are considering making a claim it is important that you do so promptly as you only have one (1) year from the persons’ death to make a claim. Following that, you will need to seek an extension of time, which will only be granted in special circumstances.
How is a claim determined?
Once an application is made, it can settle without the court having to fully determine the matter. However, if that is required the factors that are taken into account include:
- Whether you received any benefit from the Will and whether that was adequate for your needs;
- What the needs are of the other persons given benefits in the Will and what they received;
- Your financial position;
- The value of the assets to be distributed;
- Your relationship with the deceased person – For example a child who has looked after the deceased person while they battled a long term illness will have a stronger claim in this aspect than a child who has spoken to the deceased parent for a number of years.
- Any other factor the Court considers is relevant to the application.
How is a claim made?
If you are the person making the claim, you will need to file a summons, together with an affidavit setting out the basis of your claim in the Supreme Court.
If you are the executor for an estate who a claim is made against, you will be served with a copy of the summons and affidavit and will then need to file a defence to the claim in the Supreme Court.
If you are a claimant or are an executor seeking to defend a claim made against an estate you are administrating, please do not hesitate to contact us for more information.