In Australia, the law recognises that a will maker may sometimes fail to make adequate provision for close family or dependants. In that situation, certain people can ask the Supreme Court for a share, or a larger share, of the deceased’s estate. This is usually called a family provision claim or a claim against a deceased estate.
Although each state and territory has its own Act, they all broadly follow the same idea:
» You must be an eligible person, and
» You must show that you’ve been left without
adequate provision for your proper maintenance and support.
Who is generally allowed to claimThe exact list differs slightly by state, but across Australia the following categories are commonly eligible:
1.Spouses and de factor partners
» A husband or wife at the time of death.
» A de factor partner who was living with the deceased in a genuine domestic relationship
2.Children
» Biological and adopted children are generally eligible in every jurisdiction
» Step-children may be eligible in some states either directly (for example in Victoria and Western Australia) or where they were financially dependent or part of the deceased’s household.
3.Former spousesor partner
Most states allow a former spouse or domestic partner to claim, usually where there has not already been a full and final family law property settlement, or where there are special “factors warranting” an application.
4.Other dependants
Many Acts also allow claims by:
» Grandchildren who were financially dependent on the deceased or were, in substance, brought up by them. Other household members (for example, a step-child, parent, or other relative living in the same household) who were wholly or partly dependent on the deceased.
»A person in a “close personal relationship” with the deceased, such as a long-term carer or companion providing domestic support and personal care. This is most clearly recognised in New South Wales but similar ideas appear elsewhere
Because the detail differs, someone who is eligible in one state may not be eligible in exactly the same way in another, so local advice is important.
Being eligible is only the first step
Even if you fit into one of these categories, the Court will not automatically change the will. It must decide whether, looking at all the circumstances, adequate provision has been made for you. Across Australia, courts generally look at similar factors, such as:
» The nature and length of your relationship with the deceased
» Any obligations or responsibilities the deceased had towards you (compared with other beneficiaries)
» The size and nature of the estate
» Your financial position, health, age, and future needs
» Any significant contributions you made to the deceased or their property
» Any gifts or support you already received during the deceased's lifetime
» Any serious misconduct or long-term estrangement, in appropriate cases.
Judges often talk about “what a wise and just” person, or what the “community” would generally regard as fair in the circumstances would have done, without simply rewriting the will from scratch.
Time limits and next steps
Time limits to make a family provision claim are strict and vary by state. The Court will only extend time beyond these time limits in limited situations. If you think you may have a claim, it is generally sensible to get prompt advice from a wills and estates lawyer. $
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