What is a Family Provision Claim?
A Family Provision Claim is a method of disputing a will in court. You are eligible to submit a Family Provision Claim if you are related to the deceased or had a close relationship with them and have a demonstrated financial need that the deceased had a moral obligation to meet.
Some of the factors a court may take into consideration when deciding on your case include: your overall financial need, your relationship with the deceased, any obligations the deceased may have owed you, and your financial circumstances compared to other beneficiaries.
The process of filing Family Provision Claims depends on where in Australia you live.
Who can make a Family Provision Claim?
What if I am an Executor?
If you are an executor, then you need to seek the advice of a lawyer. This is because you will be making Family Provision applications on behalf of the deceased. If you are the subject of a Family Provision application, then you need to seek the advice of a lawyer. This is because you will be making decisions about what should happen to the estate.
When can a Family Provision Claim be made?
Time limit for making a Family Provision Application
The Family Provision Application can be made at any time within 12 months after the date of death of the deceased person. The legislation states that you must bring a claim within six months from the date that probate or administration is granted. There are some exceptions to this time limit and in certain cases, out of time applications can be made.
If an application for family provision is made more than six months after the date of probate or administration, the claimant will need to show the court that they have ‘sufficient cause’. The court must be provided with 'sufficient justification or excuse' or 'sufficient explanation'.
How do I make a Family Provision Claim?
To make a Family Provision Claim, you must provide evidence of your financial position, needs and circumstances along with the relationship between the deceased and the Claimant. Other matters that may effect the application include:
-The size and nature of the deceased’s estate;
-Any service rendered by the Claimant to the deceased;
-The totality of the relationships between the Claimant and the deceased;
-Any dependant children in the Claimant’s care;
-The co-operation and support given by the Claimant in the conduct of the deceased’s business and affairs.
If you are eligible, you can apply for a grant from The Australian Government. The grant is based on how much money you are entitled to receive. You will need to submit an application form along with proof of your financial position, needs and circumstances.
What will the Court consider?
What do I need to prove to make a Family Provision Claim?
In order to make a Family Provision claim, the Claimant must show that the deceased had a duty to provide for them. This is usually shown by evidence of an underlying contract or agreement between the parties. The Claimant must also prove that the Will does not provide adequately for their welfare/maintenance, support, education and advancement in life. Other matters that may effect the application include:
-The size and nature of the deceased’s estate;
-Any service rendered by the Claimant to the deceased;
-The totality of the relationships between the Claimant and the deceased;
-Any dependant children in the Claimant’s care;
-The co-operation and support given by the Claimant in the conduct of the deceased’s business and affairs.
What orders can the court make on a Family Provision Claim?
If an applicant makes a Family Provision Claim, the court may consider various matters. Some of these include:
The court may order provision for the applicant if the relationship between the deceased and the applicant, if any, is satisfactory.
The court may also order provision for the applicant if the deceased had any obligations or responsibilities to the applicant or any beneficiaries of the estate.
The court may also order provision for the applicant if there is enough financial resources (including earning capacity) and needs (both present and future) of the applicant and any other beneficiary.
The court may also order provision for the applicant if he/she is not able to support himself/herself financially.
The court may also order provision for the applicant based on his/her age, contribution to welfare of deceased, etc..
What are the risks of making a Family Provision Claim?
There is a risk that the Claimant will not be able to provide for the deceased's welfare/maintenance, support, education and advancement in life. The Claimant must provide evidence of their financial position, needs and circumstances along with the relationship between the deceased and the Claimant. The size and nature of the deceased's estate; Any service rendered by the Claimant to the deceased; The totality of the relationships between the Claimant and the deceased; Any dependant children in care of claimant; The co-operation and support given by claimant in conducting affairs of decedent.
What if the deceased person left a will?
If the deceased person left a will, State Law Group can help you contest the distribution of an estate under an intestacy. Intestate succession is the legal process by which property passed to the deceased person's heirs after death without a will. If there is no will, State Law Group can help you determine who is entitled to property based on various factors such as (an assessment of moral duty and applicant's needs) were in place. If you require assistance with a Family Provision Claim, reach out to the experts at State Law Group today.
What if the deceased person did not leave a will?
If the deceased person did not leave a will, then the property will be divided between the 2 sisters who contributed less to their parents' care. This is determined by the law of intestate succession. This means that without a will, the law will decide who gets what based on who was closest to the deceased during their lifetime. If there is no clear winner, then the property will be divided equally between both sisters.
If the deceased person did leave a will, our legal team can help to extinguish the debt and earn our client a share of the profit from the sale of the home. Contact State Law Group for free legal advice about contesting wills.
Are you a beneficiary left out of a will?
If you believe you have been unfairly left out of a will, filing a Family Provision claim is the next step. The legal team at State Law Group can help you with your claim and take some of the challenges out of an already emotionally trying time.
The law recognises that on occasions persons who would ordinarily be a beneficiary under a Will or recipient and recipients of the property of the deceased testator may either not be provided for or may be inadequately provided for.
If you are a dependent or beneficiary who has not been provided for adequately, file a Family Provision claim with State Law Group. Our lawyers work on "no win no fee" basis, so you know that you're making the right decision in advocating for yourself.
We have years of experience winning successful cases for our clients, translating to billions of dollars in compensation for our clients. When it comes to your family's future, we're here to help!
