A family provision claim is an application to the Court where a person seeks a share, or greater share of an estate of someone that has died.
You may have heard about challenges to Wills in the news recently. Both of the estates of Bob Hawke, former Prime Minister, and the famous Racehorse trainer Bart Cummings have been subject to family provision claims by children who have been unhappy with how they were treated in the last will.
Who can make a claim and what is the process?
At Turner Freeman Lawyers, we often get asked the questions, who can make a family provision claim and what does the process involve?
Any “eligible person” can make a claim, most often a spouse or child of the deceased person, but the definition of eligible person also includes any person who has lived with and been dependent on the person that has passed away.
Once someone is considered an eligible person, they must then satisfy the Court of two key factors. Firstly, that they have financial need, normally this should be a current and pressing need, such as repayments on a mortgage, but can also include financial need in the future, such as having sufficient superannuation in retirement or a contingency fund for medical expenses. Secondly, a person must show that they have received inadequate provision out of a deceased person’s estate. This will typically mean being left out of a will entirely but can extend to a situation where a person has received only a small or very small share of an estate.
Whilst the above two factors are a primary consideration for the Court, a range of other factors are taken into account in determining a claim, including the size of an estate, a claimant’s relationship with the deceased person, including any estrangement, as well as any provision made for that person during the deceased person’s lifetime.
It is important to note that a person has only 12 months from the date of death to make a claim, and otherwise requires leave of the Court to make their claim.
The process of making a family provision claim begins with an application to the Supreme Court.
Once a claim is filed with the Court, accompanied by affidavit evidence which details all of the relevant factors, such as financial circumstances, relationship with the deceased, amongst other things, the Court then refers all claims to mediation where it is hoped that the parties (generally the claimant and the executor) will reach a settlement which effectively brings an end to the claim. Approximately three-quarters of all claims filed with the Court resolve at this compulsory mediation stage.
If a claim doesn’t settle at a mediation, it will then be prepared for a final contested hearing before a Judge of the Supreme Court. The parties are given an opportunity to reply to affidavit evidence from the opposing side before the hearing, as well as a chance to update their affidavit evidence. It is important to note that only about 5% of all claims filed with the Court (of approximately 1,000 each year) get to the point of a contested court hearing. All of the remaining matters are settled at mediation or prior to a final hearing.
At Turner Freeman Lawyers, we aim to make the entire process of a family provision claim as simple and straightforward as possible. We have Lawyers who are specialists in Wills & Estates law who will break down complex legal terms and processes into straight forward language. If you or anyone you know needs some no obligation advice, please contact our Penrith office on (02) 4729 5200 or head to www.turnerfreeman.com.au.