If you have been left out of a Will or left far less than you need, you may be eligible to bring a claim for more from the estate, known as a family provision claim. These claims ask what the deceased ought to have provided for your maintenance, support, education or advancement in life and, if successful, the division of the estate can be adjusted to give effect to that.
What is a family provision claim?
A family provision claim is a legal application asking a court for a share, or a larger share, of a deceased person’s estate because you were left without adequate financial support. It is commonly referred to as “contesting a Will”.
A family provision claim can be brought in relation to an intestate estate as well as in relation to a Will.
Who can apply?
Only certain people can apply for family provision. If you don’t fall within the approved categories you cannot apply, no matter how close you were to the deceased. The people who can bring a claim are:
- a spouse or de facto partner;
- a former spouse or former de facto partner who was receiving or was entitled to receive maintenance at the date of death;
- a child, living at the death or born within 10 months after it;
- a grandchild, in specific dependency or maintenance circumstances;
- a stepchild, if the deceased was maintaining the stepchild immediately before the death or if the deceased received property above a prescribed amount from the estate of the stepchild’s parent. Both apply only where the deceased died on or after 16 January 2013; and
- a parent.
Western Australia has no general dependant category. A friend, a carer, a niece or a nephew cannot apply, regardless of what they did for the deceased.
How long do you have?
A family provision claim must be brought within six months, running from the date of the Grant of Probate or Administration. A person can apply to the Court for leave to file out of time if they have missed the six month deadline, but approval of the Court is required.
What does the Court take into account?
The matters the Court weighs include:
- your financial position, your age and your future earning capacity;
- what the deceased already gave you, in the Will or during their lifetime;
- the relationship between you, the deceased and the other beneficiaries;
- the size of the estate and what is in it;
- any contribution you made to the estate;
- the needs of the other beneficiaries; and
- any conduct on your part that would disentitle you.
Two people left the same entitlement under the same Will can get very different answers, because the question is about need rather than about fairness or equality between the children.
What happens once a claim is filed?
A claim starts with an originating summons and an affidavit filed in the Supreme Court. The affidavit sets out your position, including your finances in detail. The matter then goes to a case management conference, which usually programs it to mediation. Mediations are held at the Court and conducted by Registrars. If the mediation does not resolve it, the claim goes to trial. Settlement stays possible at every stage.
Frequently asked questions
Is a family provision claim the same as contesting a Will?
In everyday use, yes. Most people who say they want to contest a Will mean a family provision claim. They accept the Will is valid and they want a larger share of the estate.
It is worth separating that from a challenge to the validity of the Will itself, which argues the document is not the deceased’s last valid Will. That is a different application and it runs a different way. See challenging the validity of a Will.
Can you claim if there was no Will?
Yes. The Act applies to how the estate is distributed, so an intestate estate can be the subject of a claim in the same way as an estate governed by a Will.
Can a carer or a friend claim in Western Australia?
No. The list of eligible applicants is closed and there is no general dependant category.
Does a claim stop the executor distributing?
Not automatically. The executor’s protection is keyed to notice rather than to time, because no action lies against an administrator who distributed properly without notice of an application or an intended application. Once the executor has notice, distributing becomes risky. See Executors: how to protect yourself from claims.
Talk to us about a family provision claim
We act for people bringing family provision claims and for executors defending them. The first job either way is working out whether the claim is eligible and what it is realistically worth. Call the probate and estate disputes team on (08) 9220 4490 or see our family provision claims page.
This article is general information about the law in Western Australia and is not legal advice. Your circumstances may change the answer, so please get advice on your own situation.
