You need to read how the challenge process works …
Family Provision claims are about challenging a Will where someone thinks proper provision hasn’t been made for them.
For example…a client’s parents separated at the time of her birth and it was not until she was a teenager that she was able to locate and meet her biological father. A close relationship built up between them over the years, but her father never got around to changing his Will to make provision for her. After his death she got appropriate advice and made a family provision claim that settled out of Court. It resulted in her receiving a substantial sum from her father’s estate – as he no doubt would have wanted… and the estate also paid all of her legal costs, so she was not out of pocket.
The time for making a claim is within 12 months after the death of the deceased.
All family provision claims have to be mediated before a Registrar of the Court to attempt to settle them, and settlement rates for these types of cases are very high, so the chances of having to actually go to a court hearing are low.
Although the Court will not re-write a person’s Will it can alter a deceased person’s Will in favour of an “eligible person” in one of 4 broad categories of relationship to the deceased. The four categories are:
- Spouses (including married or de facto spouses & former spouses);
- Children;
- Grandchildren (who must also have been dependent upon the deceased at some time); and
- A person who at some time was a member of the deceased’s household and dependent upon the deceased (eg: step children, foster children, etc)
Just being an “eligible person” is not enough to succeed, and the person challenging the Will must also prove to the Court that the provision left for them under the Will, if any, is inadequate for their proper maintenance, education and advancement in life.
The law looks at the applicant’s financial need and the deceased’s obligation to make provision for that need.
If the Court decides that the applicant has been left without adequate provision it will then consider what provision should be made for that applicant’s maintenance education and advancement in life.
The Court will consider such matters as the size of the estate, the financial and other needs and circumstances of the applicant, and the circumstances of any other beneficiaries of the estate.
There are many matters to be looked at if you are considering making a Family Provision claim and it always pays to get advice from a lawyer experienced in these kinds of cases …
Phone Geoff Brazel (02) 4324 7699
