Coping with the loss of someone is one of the biggest challenges we will all need to face. But after the loss, also comes highly sensitive and difficult situations, particularly when that person close to you passes away leaving a will and if you have been unfairly left out or inadequately provided for you may wish to dispute that will.
A will is a legal document that communicates and coordinates how your assets are distributed after you death to your family, friends, relatives or guardians.
When a surviving family believes that what is due is taken away, there is a law that recognises eligible persons to challenge the will through the Courts on the basis that they are entitled to a portion, or a larger portion of deceased person’s estate.
These types of claims are called Family Provision claims which we have seen a significant increase in the current times. So what are the eligibility qualifications, how to apply for these claims, what to expect, and what to do next when faced with this predicament?
What is a Family Provision Claim?
Eligible persons who have been left without adequate provision. An application can be made by surviving individuals who hasn’t been adequately provided for by a will.
Who can make a family provision claim?
- An ‘eligible person’ in the eyes of the Court;
- An ‘eligible person’ who believes that he did not receive due entitlements in a will;
- An ‘eligible person’ who makes a claim within 12 months of the date of the deceased.
The following are ‘eligible persons’:
- Deceased person’s wife or husband at the time of death;
- Deceased person’s de facto relationship at the time of the death;
- Deceased person’s child;
- Deceased former wife or husband;
- Deceased dependent (wholly or partly);
- Deceased grandchild;
- Deceased household member at any time;
- Deceased closed relationship at the date of death.
How do you make a claim?
- An eligible person can make a claim by filing an application in the relevant Court together with a detailed affidavit of claim. It includes all evidences from witnesses on both sides of the deceased and the applicant making the claim.
- The matter will then be listed as compulsory mediation. However, if it is not successfully resolved, it will be then be listed for hearing.
- Duration of the process between the time of application and Court hearing is between one and two years.
What to expect
Please take note that the Court has discretion to grand extension of time for sufficient reason. It will also take into consideration the impact of the extension to both parties, the behaviour of the parties involved, the willingness to negotiate, and the general strength of the family provision claim.
The Court will also make the decision it considers appropriate based on the estate makeup and the availability of evidence presented by involved parties.
Eligible persons have high probability of success in Family Provision claims through way of agreement or settlement between parties during the mediation process. Most of the time, both parties are keen to settle to prevent increasing costs and reducing the estate value.
List of matters the Court considers
- Relationship between applicant and deceased person, which includes nature and duration;
- Extent and nature of obligations by the deceased person to the applicant;
- Extent and nature of the deceased person’s estate and any liabilities or charges within the existence of the application;
- Financial resources and financial needs of the applicant;
- Co-habitation with another person and his financial circumstances;
- Physical, intellectual or mental disability of the applicant;
- Age of applicant when the application is being considered;
- Contribution of the applicant to the estate of the deceased person may it be acquisition, conservation, and improvement;
- Evidence or statements by the deceased person;
- Conduct of any other person before and after the deceased person’s death;
- Any matters the Court considers relevant.
How can we help you?
If you think you may be eligible to submit family provisions claim, our team at Burgess Thomson ensures top notch assistance so clients get the share of an estate they feel they deserve. With years of experience in effective negotiations, we make sure that the interest of clients is met and all parties reach a fair solution.