Family provision claims

The persons who may apply are:

• a spouse or de facto partner;
• a former spouse or former de facto who was receiving or entitled to receive maintenance;
• a child living at the date of the death or born within 10 months thereafter;
• a grandchild who was:
  • being maintained wholly or partly by the deceased immediately before death; or
  • who, at the date of death, was living (or born within 10 months after the death) and one of whose parents was a predeceased child of the deceased;
• a stepchild of the deceased:
  • who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the death; or if –
  • the deceased received or was entitled to receive property from the estate of a parent of the stepchild greater than $517,000; and
• a parent of the deceased.

Applications must be made within 6 months of the Court making a grant of probate or letters of administration. In limited circumstances, the Court has the power to extend this deadline.

The Court takes a two-stage approach to claims. Firstly, it must determine whether the deceased made adequate provision for the applicant for their proper maintenance, support, education or advancement in life. This is assessed as at the date of death and is an assessment of the applicant’s needs rather than a value judgment about fairness. If the Court concludes that the deceased did not make adequate provision for the applicant, it will then consider what provision (if any) it should make. In doing so, the Court will put itself in the shoes of a ‘wise and just testator’ in the position of the deceased. Factors the Court generally considers are:

• the applicant’s financial position, level of education, and age (including future earning capacity);
• the provision made in the Will for the applicant (if any);
• the relationship the deceased had with the applicant and the other beneficiaries;
• the value and type of assets in the estate;
• any contribution the applicant made to the deceased’s assets/estate;
• the needs of other family members and beneficiaries;
• any disentitling conduct of the applicant.

The Court has the power to determine who pays the costs of the application. It will usually order that the executor/administrator’s costs be paid by the estate. If an application is successful, the Court may order the applicant’s legal costs to be paid by the estate.