What is a family provision claim?
A family provision claim is made by a person who hasn’t been included in a Will or hasn’t received their fair share.
Who can make a family provision claim?
A family provision claim can only be made by people who are considered ‘Eligible Persons’ under the Succession Act. Eligible persons include spouses and de facto partners, ex-spouses and de facto partners, children, grandchildren (in certain circumstances) as well as other people who may have been partly or wholly dependent on the deceased.
How to make a successful family provision claim
In order to be successful, in a family provision claim, an eligible person must prove to the Court that the deceased did not make adequate provision for their proper maintenance, education and advancement in life.
Who pays for a family provision claim?
Generally, the costs of a family provision claim are paid by the Estate of the deceased. Particularly in circumstances where the Court considers that the Estate, (acting through its Executors) should have accepted the family provision claim before the matter proceeded to a Court Hearing. This includes circumstances where the Court believes that the eligible person had a strong case that they had not been adequately provided for by the deceased. This supports the aim of the Succession Act to encourage settlement of family provision claims, by mediation before they proceed to a Court Hearing.
Once a family provision claim proceeds to a Court Hearing the Court has a discretion to make an order for the costs of the eligible person to be paid out of the deceased Estate or in any other manner that the Court thinks fit.
Need help?
Have you been unfairly left out of a Will or received a lesser inheritance than you believe is appropriate? If so, you need to seek legal advice. You’ll discover if you are an eligible person to make a family provision claim. We’ll also advise on the chances of success. This can reduce time and financial costs.
