Have you been left out of a will?
The law recognises that on occasions persons who would ordinarily be a beneficiary under a Will or recipient and recipients of the property of the deceased testator may either not be provided for or may be inadequately provided for.
- a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
- a child of the deceased person,
- a former wife or husband of the deceased person,
- a person:
- who was, at any particular time, wholly or partly dependent on the deceased person, and
- who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Time for making a Family Provision Claim application
An application for a Family Provision order by an eligible person can be made at any time within 12 months after the date of death of the deceased person.
Making of a Family Provision Order
A Family Provision Order may be made if the Court is satisfied that the person seeking the order is an eligible person and has not received provision for the proper maintenance, education or advancement in life by the Will of the deceased or in the event that there is no Will, by the operation of the rules of intestacy in relation to the estate.
In respect of this category, the deceased may have left no Will, and there are rules whereby the deceased’s estate passes to beneficiaries in those circumstances but the Intestacy Rules deprive the person seeking the order of entitlement under the Will.
The Court considers matters relating to the Family Provision applications as follows.
The matters that may be considered include the following:
- any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;
- the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
- the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
- the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
- if the applicant is cohabiting with another person-the financial circumstances of the other person,
- any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
- the age of the applicant when the application is being considered,
- any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
- any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
- any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
- whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
- whether any other person is liable to support the applicant,
- the character and conduct of the applicant before and after the date of the death of the deceased person,
- the conduct of any other person before and after the date of the death of the deceased person,
- any relevant Aboriginal or Torres Strait Islander customary law,
- any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
The matters in (1) to (16) are not exhaustive, and item (16), which relates to “any other matter that the Court considers relevant”, gives the Court a wide discretion. This discretion includes matters that may have arisen at the time of the deceased’s death or at the time the application is being considered.
It is important to see a solicitor to ascertain your rights.
The time of one year from the date of the deceased’s death is a strict time limit. It is important to obtain advice from a lawyer early.
Making the application for the family provision order
The application is made by the filing of an application in the relevant Court form together with a detailed affidavit.
Evidence is thereafter filed in support, including affidavits from relevant witnesses on both sides and then the matter is listed for a compulsory mediation.
Generally, the application is filed by the person making the claim against the executor of the deceased’s estate.
If the matter is not successfully resolved at a mediation, then the matter will be listed for a hearing.
The general time frame, assuming nothing untoward happens between the time of making the application and the Court hearing the application, if the matter is not otherwise resolved, or settled is somewhere between one and two years from the date when the application is made.
If you are an executor, who is the subject of Family Provision application then you need to seek the advice of a lawyer.
Retaining Legalbit in a Family Provision or contested Will claim
If you are an executor who is the subject of a Family Provision Act application you are entitled to an indemnity in respect of the costs of defending the application, from the assets of the estate.
In the event that there is a Family Provision application, the estate cannot ordinarily be distributed until the application has been completed.