Family provision claims in Australia: who can make a claim and how is it decided?

By McLane Edinger and Andrew Meiliunas 

What are family provision claims?

While individuals have the freedom to leave their assets to anyone they choose upon their death, known as the ‘freedom of testation’, this freedom is limited by the responsibility to provide for certain ‘eligible persons’.

If a person believes they have not received adequate provision under a Will or pursuant to the laws of intestacy, they may claim a greater share of the estate. These claims are known as family provision claims. In Victoria, they are more commonly described as testator’s family maintenance claims or a ‘Part IV’ claim, which is a reference to the part of the relevant legislation (Part IV of the Administration and Probate Act 1958 (Vic)).

Eligibility to make a family provision claim

Each state and territory has its own laws governing who may make a family provision claim.

State	Eligible to make a family provision claim Relationship to the deceased (at time of death)
New South Wales	spouse de facto partner child (including adopted children) former spouse a grandchild of the deceased who is wholly or partly dependent on the deceased a member of the household who is wholly or partly dependent on the deceased (this can include stepchildren) a person who was living in a close personal relationship with the deceased
Queensland	spouse de facto partner child (including both stepchildren and adopted children) former spouse (if still being maintained by the deceased) a ‘dependant’, which is someone who is either partly or wholly maintained by the deceased
Victoria	spouse domestic partner child (including both stepchildren and adopted children) a registered caring partner grandchildren a person who is a member of the deceased’s household at the time of their death, or who had been and was likely to have again been a member of the household in the near future a former spouse or partner, as long as that person was eligible to bring family law proceedings at the date of the deceased’s death the spouse or domestic partner of a child of the deceased, as long as that child dies within a year of the deceased someone who believed, for a substantial period during the deceased’s life, that the deceased was their parent and was treated by the deceased as their natural child
Western Australia	spouse de facto partner a child a person receiving or entitled to receive maintenance from the deceased a grandchild who was being maintained wholly or partly by the deceased immediately before the deceased’s death; or who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased a stepchild of the deceased who was being maintained by the deceased immediately before the deceased’s death a stepchild of the deceased, if the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and the value of that property, at the time of the parent’s death, is greater than the prescribed amount

 

Key considerations

In order to make a claim, an eligible person will need to establish:

• that the deceased person had a moral obligation to provide for them; and
• that the provision they receive under the Will (or intestacy provisions, if applicable) is not adequate for their proper maintenance and support.

The following factors, among others, may be considered in assessing whether an individual is an eligible person, whether to make a family provision order, and the nature of any family provision order:

• the nature and duration of the relationship;
• the nature and extent of any obligations owed by the deceased to the individual;
• the value of the estate;
• the financial circumstances of the individual and any other person they are living with;
• any contribution by the individual to the acquisition, conservation and improvement of the deceased’s estate;
• the age, character and conduct of the individual;
• any evidence of the testamentary intentions of the deceased; and
• any monetary gifts or other provision made by the deceased during the deceased’s life.

Time limits

Generally, you have between six and 12 months (depending on which state or territory you are in) following the date of death, or the date probate was granted, to lodge your claim. In some jurisdictions, the time limit commences when probate is granted.

The Court may allow an extension to this timeframe in exceptional circumstances if there are still assets in the estate.

If you, or someone you know, is looking at contesting a Will, please contact the estate disputes specialist located in your state (or any one of them for Queensland and South Australia).