A family provision claim refers to the contesting of the Will of a deceased person, on the grounds that they failed to make proper and adequate provision for someone whom they had a moral obligation to provide for. This means that you may be able to challenge a Will if you have been left out, or received a smaller provision than you thought you ought to receive. There are limitations on these claims, including who is eligible to apply and the time limit which someone has to make a claim.
Am I eligible?
The eligibility for making a claim depends on the law of the State or Territory where the claim is being made. This is usually in the State or Territory where the deceased lived. Each jurisdiction has its own definition of an ‘eligible person’. In New South Wales, this is found in sections 57 of the Succession Act 2006 (NSW) and in the Australian Capital Territory it can be found in sections 7 of the Family Provision Act 19969 (ACT). Generally, partners and children of the deceased are considered to be eligible to make a claim. The definition of an eligible person sometimes also includes ex-partners, grandchildren, or stepchildren of the deceased.
When can you apply?
Like many other legal claims, there are time limitations on making a family provision claim. The exact timeframe is determined by law of the relevant State or Territory. In New South Wales, a family provision claim must be filed within 12 months from the death of the deceased. Whereas in Queensland, an application must be made within nine months from the death of the deceased. In the Australian Capital Territory, Victoria, South Australia, and Western Australia a family provision claim must be filed within 6 months from Probate or Letters of Administration being granted.
There are some circumstances where a person may be able to make an application after the time limit has been reached. The court has the power to grant an extension of time where they find there is a reason to do so. In making this decision the court may consider a variety of factors, including:
If you believe that you have a claim on an estate but are concerned about the amount of time that has passed, you should seek competent legal advice about the prospects of a claim out of time.
Case Study: Morgan V Black [2023] NSWSC 1073
In the recent case of Morgan v Black [2023] NSWSC 1073, the NSW Supreme Court considered the applicant’s claim for a family provision order outside the 12 months prescribed time limit. The claim was made by the adult daughter over her father’s estate. At the time of the application, it was more than 3 years and 7 months after the death of the deceased. The daughter sought to make an application for provision as the gift to her in his Will, purporting to give her a share of a property, was not valid. The property was held by the deceased and his de-facto partner as joint tenants, and therefore passed to the partner on survivorship.
The court dismissed the application for a family provision order outside of the time limit, considering that there was not sufficient cause or explanation for the delay in applying and that ultimately there were no real estate assets out of which an order could be made.
What this means for you
If you think you might be eligible to make a family provision claim, you should seek professional legal advice as soon as possible. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.
*This article was prepared with the assistance of Monica Hoswell.
If you have any questions or concerns please contact our Private Wealth Director Ashleigh Blewitt on 02 6188 3600