Ph: 0481 246 647

Family provision

What is a family provision claim?

A family provision claim is a claim made by an “eligible person” against a deceased person’s estate that “adequate provision for the proper maintenance, education or advancement in life” of the eligible person has not been made by the deceased person’s Will or (where the deceased has died without a Will) by the operation of the intestacy rules.

If the claim is successful, the Court has power to make such orders for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person.

Who is an “eligible person”?

Only an “eligible person”, as defined in the legislation, is able to apply for a family provision order.

The following persons are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person:

  1. Husband/wife of the deceased person at the time of their death
  2. A person with whom the deceased was living in a de facto relationship at the time of the deceased’s death (including same sex couples)
  3. A child of the deceased person of any age (defined broadly to include an adopted child and other children) but not step-children (unless they fall within category 6 or 7 below)

The above 3 categories of persons have standing to bring a claim as of right.

The following persons are also “eligible persons” and the Court may make a family provision order if “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”:

4.   A former wife/husband of the deceased (but not a former de facto partner unless they fall within categories 6 or 7 below);
5.   A grandchild of the deceased who was, at any particular time, wholly or partly dependent on the deceased;
6.   A person who was, at any particular time, wholly or partly dependent on the deceased and was, at that particular time or at any other time, a member of the household of which the deceased was a member (may include step-children or former domestic partners);
7.   A person with whom the deceased was living in a “close personal relationship” at the time of the deceased’s death (eg. a boarder in an elderly widow’s home).

The following persons are not eligible persons unless they fall within category 6 or 7 above and can satisfy the additional requirement that there are having regard to all the circumstances of the case (whether past or present) factors which warrant the making of the application:

  • a step-child
  • a former de facto partner
  • a parent of a deceased child.

Persons falling within categories 4-7 above must establish the additional requirement that there are having regard to all the circumstances of the case (whether past or present) factors which warrant the making of the application. This means that they must show “factors which when added to facts which render the applicant an ‘eligible person’ give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased”.

What orders can the Court make?

The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

The orders can relate to:

  • property that is part of the estate of a deceased person; and
  • property designated as part of the notional estate of a deceased person (eg. superannuation, property held in a trust, property jointly owned with another person).

When can an application for a family provision order be made?

An application for a family provision order must be made not later than 12 months after the date of death of the deceased person.

The Court may extend the time allowed for bringing a claim if “sufficient cause” for the application not having been made within 12 months of the deceased’s death can be shown.

How we can help you

We can:

  • advise you on the risks of your estate being successfully challenged on the basis of a family provision claim
  • advise you on steps which you may be able to take now (while you are alive) to reduce the risk of a family provision claim being successful
  • advise you on the prospects of success of a potential family provision claim
  • represent you in legal proceedings for family provision orders