If you have been left out of a Will or not properly provided for in the Will, then you may be able to apply for a larger share of the estate through a process called a “family provision claim.”
Broadly speaking, a family provision claim is an application to the Supreme Court to amend the terms of a deceased person’s Will to receive a bequest or larger share from the estate of a deceased person. Each Australian jurisdiction has different “eligibility” rules, timeframes and processes for making a family provision claim.
This article discusses family provision claims in the context of the Australian Capital Territory.
The first step of any family provision claim is to obtain a copy of the deceased’s will and to identify (as far as possible) the deceased estate assets.
Occasionally, executors and other family members may be reluctant to provide you with a copy of the Will or with other information about the estate (particularly so if you have been excluded!). However, the law in the ACT gives certain ‘interested persons’ a right to request a copy of the Will of a deceased person. You will have a right to request a copy of the Will if you are:
- A beneficiary in the last Will or any earlier Wills of the deceased person;
- The deceased person’s spouse or partner;
- A child of the deceased person;
- A parent of the deceased person;
- A person who would otherwise have been entitled to a share of the estate if the person died without a Will;
- The parent or guardian of a person listed above who is under the age of 18; or
- A person who was an attorney or guardian or financial manager for the deceased person before their death;
It’s also helpful to gather as much information as you can about the assets of the deceased person. If this information is not yet known to you, we can help you make relevant enquiries.
Who is eligible to make a family provision claim?
You can make a family provision claim if you are an “eligible person”. This means that you are:-
- The wife or husband or civil partner of the deceased person (whether current of former);or
- A de facto partner of the deceased person of more than 2 years continuously (whether current or former); or
- A child of the deceased person (including biological or children adopted by the deceased).
In addition, a parent, stepchild or grandchild or person in a dependency relationship with the deceased may in certain circumstances be eligible. If you are a parent, stepchild, grandchild or other dependent who is thinking about making a claim, talk to us so we can advise on whether you meet the additional criteria.
What will the Court consider?
Being an ‘eligible person’ is the first step to determine whether or not you have standing to make a claim.
The next step is to demonstrate to the Court that you have a financial need to benefit from the deceased person’s estate, and that the deceased person had a moral obligation to make adequate provision for your maintenance and support.
In deciding whether to give you an increased share of the estate, the Court will consider a range of factors, including the following:
- Your character and conduct;
- The nature and duration of your relationship with the deceased person;
- Any financial and non-financial contributions made by you or by the deceased person;
- The size of the estate;
- Your financial circumstances and responsibilities;
- Your age, physical and mental capacity;
- Your financial needs;
- The competing needs of any other beneficiaries or claimants; and
- Any other factor the court considers relevant.
In practice, many individuals (including those of blended families), may have obligations to provide for multiple persons on their death, often with a limited financial resource pool in which to make provision for all family members. This means that the task often involves showing that you have the ‘greater need’ from the estate of the deceased person compared to the other beneficiaries or other family provision applicants. For this reason, spouses (including de facto) and minor children are typically seen to be more successful in family provision claims, as opposed to adult children and other non-dependants.
For ACT estates, a family provision claim must be filed with the Court within 6 months of the Grant of Probate or Letters of Administration. For NSW estates, a family provision claim must be filed within 12 months from the date of death. To ensure that you have sufficient time to consider your options and put together relevant information that will be filed with the Court, the earlier you seek legal advice, the better.
Mediation and alternatives to Court proceedings
The majority of family provision claims are settled prior to a Court hearing through mediation or other negotiations by agreement between the executor, beneficiaries and other impacted persons. An agreed settlement is usually documented through a Deed of Family Arrangement or Consent Orders.
The potential benefits of a negotiated settlement include minimising the time, stress and cost of Court proceedings; managing the risk of uncertain Court outcomes; and it enables the parties to explore settlement options beyond what a Court is likely to order.
How we can help
If you have been left out of a Will, Tetlow Legal can advise you on your eligibility for making a family provision claim and the merits of your potential claim. As specialists in estate law, we can help you work through your options and guide you through the processes of negotiation, mediation and Court. We take a holistic and client-centred approach to family provision claims that ensure we understand your objectives, identify potential risks and advise you on your options at every step.
If you would like to discuss a potential family provision claim or any other aspect of a deceased estate, we invite you to contact Rebecca Tetlow on (02) 6140 3263 or [email protected].