Family provision claims in Australia: who can make a claim and how is it decided?
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.
Eligible to make a family provision claim
Relationship to the deceased (at time of death)
|New South Wales||
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.
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).
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