All states in Australia have legislation that allows the Court to order that the estate of a deceased person be paid to particular persons in certain circumstances.
Who is entitled to a portion of an estate
In South Australia, those persons include:
- a spouse;
- a former spouse;
- a domestic partner;
- a child;
- a child of a spouse/ domestic partner who was maintained/entitled to be by the deceased immediately before death;
- a grandchild;
- a parent – provided they cared for, or contributed to the maintenance of, the deceased during the deceased’s lifetime;
- a brother or sister – provided they cared for, or contributed to the maintenance of, the deceased during the deceased’s lifetime.
This type of legislation is known as ‘family provision’ or ‘family maintenance’ legislation, because the Court can direct that the deceased’s estate can be paid for the ‘maintenance education and advancement in life’ of those persons.
The Court can do this even if:
- The deceased had a Will;
- The deceased did not have a Will;
- The deceased wrote down reasons why they were not providing for the relevant person;
- The deceased and the relevant person were estranged;
- The deceased made provision (such as gift of money) for the relevant person in their Will. Australia’s family provision law came from a law of New Zealand which was enacted in 1900. It was introduced because of the problems resulting from spouses and children being left without adequate inheritance. Although a person has freedom, to an extent, over how they wish to dispose of their estate when they die, they are required to take into account the needs and requirements of persons close to them. The Court is required to place itself in the position of the testator and consider what ‘a wise and just, rather than a fond and foolish’ testator ought to have done in all the circumstances.[i]
- The Court, in making its decision, will consider the following:
- The Court says that will-makers (‘testators’) have a moral duty or a responsibility to make appropriate provision for such persons. The moral duty is determined in accordance with current community standards.
- Size of the deceased’s estate;
- Financial position of the person making the claim;
- Future needs of the claimant, taking into account health, employment, etc;
- Relationship between the deceased and the person making the claim;
- Care provided to the deceased;
- Contributions by the person making the claim to the deceased’s estate;
- Provision made by the deceased to the person making the claim during the deceased’s lifetime;
- Competing claims.
There are many factors that are taken into account when determining the strength of a person’s claim. There are also strict time limits on when a person can make a claim on a deceased person’s estate, so it is important to seek legal advice as soon as possible.
If you feel you have not been adequately provided for or wish to make a claim on someone’s estate, please contact our office on 8213 1000.
[i] Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463, 478–9 (Lord Romer)
