The basis for making such a claim is that the deceased either made no provision for you or inadequate provision. It follows that if you wish to exclude someone from your Will you need to obtain expert advice before you do so. Even if you make a gift believing that will prevent the person from challenging your Will, that belief is incorrect. The person can still challenge your estate even if they have been provided for in the Will but they claim that the provision was inadequate.
The first step in determining whether you can make a Family Provision Claim is to establish whether you are an eligible person.
Who is an eligible person?
- Spouses;
- Former Spouse;
- Defacto Partners;
- Children;
- Grandchildren who have been a member of the deceased’s household and dependant upon their grandparent;
- A person who was ordinarily a member of the deceased’s household and dependent upon the deceased (eg step-children); and
- A person with whom the deceased was living in a ‘close personal relationship’.
Secondly, in Will Disputes you need to show the Court that you have a financial need for provision from the estate. Financial needs include education, maintenance or benefit.
Evidence of estrangement between the deceased and the person making the claim may be relevant in the Court deciding whether or not to award provision out of the estate to the Claimant. The size of the estate will often be a factor the Court may take into consideration. The smaller the estate the harder it may be to persuade the Court to make provision for you.
The Court will also accept into evidence a statement a deceased person may have made as to why they have excluded a beneficiary from their Will, In such a situation, we recommend the reasons for doing so be set out in detail in a separate document such as a Statutory Declaration. This would allow the Court to properly consider the reasons after your death if a challenge is made to your Will.
Will Disputes are a complex area of the law and there are a number of factors a Court must take into account. For this reason, it is important to obtain expert legal advice on whether you may be entitled to make a Family Provision Claim.
One very important thing to keep in mind is that any challenge of a Will or Estate of a deceased person by way of a Family Provision Claim must be made within 12 months from the date of the deceased’s death. If the claim is not made within that 12-month limitation period then the legal right to make such a claim is lost.
If you believe any of the above applies to you and you wish to find out more information, call Geoff Brazel, Estate Lawyer on 02 4324 7699 for a confidential chat.
