Family provision claims made against an Estate
In this episode of Talking Legal, Len Watt from Love Family law firm covers family provision claims made against an estate.
1. What is a family provision application or claim?
A family provision claim often arises when a member of the family is not considered in the will.
It enables an eligible person to make an application to the court seeking that an adequate provision be made for the proper maintenance and support from the deceased person’s estate.
2. Who is an eligible person?
An eligible person is generally a spouse, child or dependent of the deceased person.
A spouse can include a current or dependent former husband, wife, de facto partner or civil partner. It can be a number of people if the deceased person has multiple spouses that fit that definition.
A child can include a natural child, stepchild or adopted child.
A dependent refers to someone who is wholly or substantially supported by the deceased at the time of their passing. Not only can this include a child under the age of 18, but also a parent.
3. How does the court approach these types of claims?
This is a very old area of law, so there are clearly defined principles upon which the court must act.
There are a number of factors that the court considers when determining a family provisions application:
- The applicant’s financial position and needs
- The ability of the applicant to meet their financial obligations (if they have any physical, intellectual or mental disabilities)
- The size of the estate
- Any contributions that have been made to the deceased’s estate or to maintain the welfare of the deceased person
- The relationship between the applicant and deceased
- The wishes of the deceased
4. What are the steps in making a Family Provision Application?
If a person seeks to make a family provision application, they must do so within six months of the person passing. Within nine months, they must file their application with the court.
Fourteen days from the service of a draft directions order (which is normally included in the application), the executor either agrees to a timetable proposed or negotiates other days with the applicant. The parties go through a period of negotiating a settlement, often through mediation.
If mediation fails, a trial date will be set for the matter to be determined by a judge.
5. What should I do?
A will is a very technical and important document. We recommend you see a lawyer to ensure that it is adequately drafted. It should consider each individual circumstance – e.g. thinking about all of the people who may have a claim and making allowance for them within the will.