Left Out of a Will?

What you need to know about making a Family Provisions Claim

When a family member or loved one has passed away is always a very difficult time, but this is can be made even more difficult if you have been left out of their Will or not adequately provided for. In these circumstances you may be able to make a family provision claim against their estate.

What is a family provision claim?

A Family Provision Claim is an application to the Supreme Court seeking a share of the deceased’s estate. You may have been excluded completely from someone’s Will or have been gifted a lesser share than other beneficiaries and you then seek additional provision.

Who can make a family provision claim?

In order to make a Family Provision Claim you must be an eligible under relevant State legislation, such as the Succession Act 2006 (NSW) or the Family Provision Claim Act 1969 (ACT). An eligible person includes:

 

New South Wales

ACT

Surviving husband or wife of the deceased person; A person who was living in a de-facto relationship with the deceased person; A child of a deceased person, including an adopted child; A former divorced husband or wife of the deceased; A person who was: Wholly or partly dependent on the deceased person; or A member of the household of the deceased person. A person who was in a close relationship with the deceased person.

a partner of the deceased person; a person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 or more years continuously at any time; a child of the deceased person; a stepchild of the deceased person; a grandchild of the deceased person; a parent of the deceased person.

There are some criteria and limits to certain groups of eligible people and we recommend discussing your circumstances with an experienced lawyer to advise whether you are able to make a family provision claim.

On what ground can you make a claim?

If you meet the criteria of an eligible person you may then make a claim against the estate on the basis that:

• you were dependent on the deceased person;
• the share you received its not adequate for your maintenance and support;
• you relationship with the deceased began after the Will was made
• the Will is grossly unfair.

What does the Court consider when assessing a family provision claim?

After you make a claim the matter may be settled out of Court but if it proceeds to hearing the Supreme Court will take into account the following factors when determining your claim:

• the relationship between the applicant and the deceased person
• any obligations or responsibilities owed by the deceased person to the applicant
• the value and location of the deceased person’s estate
• the financial circumstances or lack thereof the applicant, including their current and future financial needs
• whether the applicant is financially supported by another person
• whether the applicant has any physical, intellectual or mental disabilities
• the applicant’s age
• any contribution made by the applicant to increase the value of the estate
• whether the deceased person has already provided for the applicant during their lifetime or from the estate
• whether the deceased person provided maintenance, support or assistance to the applicant
• whether any other person is responsible to support the applicant
• the applicant’s character

What time limits apply?

In NSW you have 12 months from the date of death to lodge a claim against the estate, whereas in ACT and VIC you have 6 months from the date of the Grant of Probate or Letters of Administration.

How Chamberlains can help

If you have been left out of a will or have not been adequately provided for there are limits than apply and can affect to access to entitlements. It is important to speak to us as soon as possible so we can help you on the way.

We understand that this is a difficult time and we are committed to guiding you through the entire process. Contact our wills and estate planning lawyers today to discuss the options for your claim.