A family provision claim is a legal action that allows eligible individuals to challenge a will if they believe they have not been adequately provided for. This type of claim is designed to ensure that the deceased’s dependents or close family members receive a fair share of the estate, even if the will does not allocate sufficient funds or assets to them.
Family provision claims exist to prevent situations where loved ones are left without adequate financial support after a death. These claims are especially important in cases where someone had a reasonable expectation of receiving support from the deceased but was left out of the will or given an insufficient share.
Who Can Make a Family Provision Claim?
Family provision claims are not open to just anyone. Only certain individuals, typically those who had a close relationship with or were dependent on the deceased, are eligible to contest a will under this provision. The eligibility criteria are established under state laws, which can vary, but generally include.
Spouses or De Facto Partners
The surviving spouse or de facto partner of the deceased is usually the most common claimant in family provision cases. This includes legally recognised relationships, whether the couple was married or living together as de facto partners.
Children and Stepchildren
Both biological and adopted children have the right to make a family provision claim. In some jurisdictions, stepchildren may also be eligible if they were financially dependent on the deceased or if the deceased had a long-standing relationship with them.
Former Spouses
In some cases, a former spouse who was receiving financial support from the deceased may be entitled to make a family provision claim. This can arise when financial obligations, such as maintenance or property settlements, are not fully resolved.
Dependents
Any individual who was financially dependent on the deceased at the time of their death may be eligible to contest the will. This could include elderly parents, grandchildren, or other relatives who relied on the deceased for financial support.
Other Eligible Persons
In certain circumstances, the courts may also consider claims from individuals who had a close personal relationship with the deceased and were financially dependent on them, even if they don’t fall into the categories mentioned above.
How Do I Make a Family Provision Claim?
Making a family provision claim involves a legal process that requires careful steps to ensure your claim is properly considered. If you believe you’ve been inadequately provided for in a will, here’show you can proceed.
Review the Will
The first step is to obtain a copy of the will to understand its provisions. This will allow you to assess whether you have grounds to believe that you’ve been unfairly left out or provided with an insufficient share.
Seek Legal Advice
Consulting an experienced lawyer is crucial. A solicitor specialising in family provision claims can help assess the validity of your claim, guide you through the legal process, and increase your chances of success. The lawyer will also review your relationship with the deceased and determine whether you’re eligible to make a claim.
Submit a Claim Within the Time Limit
Each state or territory has specific time limits for lodging family provision claims. In New South Wales, a family provision claim must be filed with the court within 12 months of the date of death. Failing to act within this period can result in your claim being dismissed, so it’s essential to act quickly.
Provide Necessary Documents
To make a successful claim, you will need to present evidence to support your case. This includes documents that demonstrate your financial situation, your relationship with the deceased, and any reasons why you believe you were inadequately provided for. Your lawyer will assist in gathering and submitting these documents.
Mediation or Court Proceedings
Many family provision claims are resolved through mediation, where both parties try to reach a settlement. If an agreement cannot be reached, the case may proceed to court, where a judge will make a final decision based on the evidence presented.
Important Considerations
The outcome of a family provision claim can depend on various factors, including the size of the estate, the financial needs of the claimant, and the circumstances of other beneficiaries.
Grounds for Contesting a Will with a Family Provision Claim
Contesting a will on these grounds is not about challenging the will’s validity, but rather ensuring that certain family members or dependents are properly looked after.
Inadequate Provision
The most common reason for making a family provision claim is the belief that the will does not make “adequate provision” for the claimant’s proper maintenance, education, or advancement in life. This means that, although the will is valid, the distribution of the estate leaves the claimant in a financially vulnerable position.
Changed Circumstances
Sometimes, the will was written under different circumstances, and the claimant’s financial or personal situation may have changed significantly since it was created. For example, if the claimant has lost a job, developed a health issue, or experienced a significant life change, they may have a stronger case for claiming a larger share of the estate.
Financial Need
Courts consider the financial position of the claimant when assessing a family provision claim. If the claimant can demonstrate that they are struggling financially or are unable to support themselves adequately, this can serve as grounds for increasing their share of the estate. Financial hardship, debts, or an inability to maintain a reasonable standard of living can all strengthen a claim.
Obligation to Provide
In deciding whether a claim is valid, courts assess the deceased’s obligation to provide for the claimant. This obligation is stronger in cases involving immediate family members, such as spouses or children. The court will consider whether the deceased had a moral duty to provide for the claimant, taking into account the nature of their relationship.
Competing Claims
A family provision claim may also be considered if there are competing claims from other beneficiaries. The court will weigh the needs of all claimants, as well as the size of the estate, when deciding how to distribute assets fairly. If the deceased had multiple dependents, the court must balance the interests of each party involved.
Estrangement or Difficult Family Relationships
While estrangement or difficult family relationships can complicate matters, they do not automatically disqualify a family member from making a claim. Courts assess the entire situation, including the reasons behind the estrangement, and determine whether the claimant is entitled to a share of the estate despite past conflicts.
Additional Considerations
- The size and value of the estate.
- The financial needs and responsibilities of the other beneficiaries.
- The claimant’s financial, physical, and mental health.
- Any promises or commitments made by the deceased to the claimant during their lifetime.
Possible Outcomes of a Family Provision Claim
When a family provision claim is made, the court will carefully consider all factors to decide whether the claimant should receive more from the estate. The possible outcomes of a family provision claim can vary, depending on the specifics of the case.
Adjustment of the Estate Distribution
One of the most common outcomes is the court ordering a change in how the estate is distributed. If the court finds that the claimant has not been adequately provided for, it can adjust the will to allocate a larger portion of the estate to the claimant. This could involve giving the claimant specific assets or a lump sum payment to meet their financial needs.
No Change to the Will
In some cases, the court may decide that the existing provisions in the will are adequate, even if the claimant believes otherwise. This outcome can occur if the court finds that the deceased’s intentions were reasonable and that the claimant’s financial situation does not warrant further provision. The court may also consider whether making changes would unfairly impact other beneficiaries.
Mediation Agreement
Many family provision claims are resolved through mediation, a process where all parties negotiate a settlement before the case reaches court. During mediation, the parties can agree on a restructured distribution of the estate that satisfies both the claimant and the other beneficiaries. Mediation is often a preferred route as it can save time, legal costs, and emotional strain compared to a full court proceeding.
Partial Success
In some instances, the court may partially agree with the claimant’s arguments. This means that while the claimant may receive more from the estate, the increase might not be as significant as they had hoped. The court will weigh the claimant’s needs against the estate’s value and the interests of other beneficiaries, often resulting in a compromise.
Delayed Access to Assets
In cases where the claimant is awarded a share of the estate, the court may place conditions on when they can access these assets. For instance, the claimant may receive a portion of the estate in the future when certain financial obligations are met or when they reach a specific age. This is often done in the case of young or financially immature claimants.
Payment of Legal Costs
Family provision claims can sometimes result in one party being ordered to pay the legal costs of the other. If the court finds that the claim was legitimate and that the claimant had a strong case, the estate may be ordered to cover the claimant’s legal fees. However, if the claim is unsuccessful, the claimant could be responsible for their own legal costs, and in some cases, may even be required to cover the costs incurred by the estate or other beneficiaries.
Why Seek Legal Advice for Family Provision Claims?
Seeking legal advice for family provision claims is essential due to the complexity of the process and the potential emotional strain involved. A lawyer can help determine if you’re eligible to make a claim and ensure that all legal requirements, such as time limits, are met. Family provision claims must be lodged within strict timeframes, and a lawyer will guide you through the process, ensuring the claim is filed correctly and promptly.
Additionally, legal representation can alleviate the emotional stress of contesting a will. By managing the legal complexities, your lawyer allows you to focus on personal well-being during a challenging time.
At Marc Hardman & Associates, we bring over 40 years of experience in estate law, guiding clients through family provision claims with professionalism and care.
Our team is dedicated to helping you secure the outcome you deserve, whether through mediation or court action.
Reach out today for expert assistance in your family provision claim, and let us help you achieve a fair resolution.
What is an Estate Planning Lawyer?
What Does Estate Planning Mean?
An estate planning lawyer helps individuals organise and plan for the management and disposal of assets and liabilities upon death or incapacitation. What is estate planning? In Australia, it refers to creating legal structures that ensure your assets are distributed according to your wishes, while minimising taxes and legal disputes.
How Do Estate Planning Lawyers Help?
Estate planning lawyers can help relieve the burdens mentioned above and help advise clients on how to prepare and manage their personal and financial matters for the future.
Also known as wills and estates lawyers, these solicitors play a crucial role in ensuring plans are comprehensive and legally sound for the distribution and management of assets after death or incapacity.
What Does an Estate Planning Lawyer Do?
Drafting Wills
Assisting clients draft a will that clearly outlines the distribution of their assets after death. This includes addressing superannuation death benefits and ensuring the will complies with all necessary Australian legal standards.
Establishing Trusts
Providing advice and setting up trusts, such as discretionary family trusts, testamentary trusts, and special disability trusts, to ensure proper asset management during the client’s lifetime and after.
Enduring Power of Attorney (EPOA)
Assisting in setting up legal structures that grant a trusted individual the authority to make financial or property decisions on behalf of a client in the event of mental incapacity.
Enduring Guardian
Assisting clients to appoint a trusted person with the authority to make health and lifestyle decisions on their behalf if they can’t make them for themselves.
Advance Health Directives
Helping clients outline their wishes concerning medical treatments, surgeries, and interventions they would or wouldn’t want if they were in a position where they couldn’t communicate or make decisions for themselves.
Estate Administration and Probate
Assisting executors in the process of validating a will in the Supreme Court (probate), distributing assets, settling debts, and handling estate-related disputes.
Superannuation
Guiding clients on binding and non-binding beneficiary nominations, and advising on how superannuation benefits are treated upon death or incapacity.
Protecting Assets
Advising on strategies to protect assets from potential claims, such as those under family law or from creditors.
Family Provision Claims
Assisting and advising on potential challenges to a will under the Family Provision legislation, which allows certain close relatives or dependents to claim a larger portion of an estate if they believe they haven’t been adequately provided for.
Business Succession Planning
Advising business owners on how to manage the transition of ownership and control of their business upon retirement, incapacitation, or death.
Examples of Who Estate Planning Lawyers Help
Regardless of one’s stage in life or financial situation, estate planning can bring peace of mind and clarity, minimising the burden on loved ones during challenging times. Estate planning lawyers in Australia play a key role in this process, offering their expertise to guide clients in making the best possible decisions.
Individuals and Families
Estate planning is important for adults regardless of age, family status or wealth level. It ensures that their assets will be distributed according to their wishes and provides directives for health and end-of-life decisions.
This includes individuals in blended families and those in non-marital relationships. Estate planning lawyers can help navigate the complexities to ensure that both current and former family members are treated as the client wishes.
Parents and Guardians of Dependents
Estate planning is crucial for people with dependants, including minor children or adults with special needs. It can establish guardianships, create trusts for ongoing financial support, and ensure the dependents’ needs are met.
Solicitors can help set up special needs trusts or similar arrangements to ensure ongoing care for individuals with disabilities, ensuring the upholding of any government benefits they may be receiving.
High-Net-Worth Individuals and Business Owners
For those with significant wealth, a family business, or complex investments (like property in multiple jurisdictions), estate planning lawyers can help with tax planning, succession planning, and structuring of assets to protect and preserve wealth.
Ageing Individuals and Those with Health Concerns
Estate planning lawyers assist older adults or those with significant health issues in planning for potential incapacity, healthcare decisions, and end-of-life arrangements. This can involve creating powers of attorney, health care directives, and long-term care planning.
This includes those who have specific wishes about leaving money or assets to charities, friends, or distant relatives, ensuring that these wishes are legally enforceable and tax-efficient.
Expatriates and Immigrants
For individuals with significant connections to more than one country—such as property ownership, residency, or citizenship—estate planning can become complex due to differing laws and tax systems. Estate planning lawyers can help individuals navigate these.
Professionals with High Liability Exposure
People in professions with high liability exposure, such as doctors or business owners, may seek estate planning advice to protect their personal assets from potential professional lawsuits.
Charitable Organisations
Estate planning lawyers may work with not-for-profits to set up planned giving programs and advise donors on making bequests to the organisations in a tax-efficient manner.
Considering Estate Planning or Curious to Learn More?
With over 40 years of experience, we’ve seen firsthand that estate planning goes beyond the paperwork. It’s about understanding your family dynamics, preserving your legacy, and ensuring peace of mind for your loved ones.
From creating trusts to ensuring smooth business transitions or even setting up advance healthcare directives, an estate planning lawyer ensures that your wishes are respected, tax implications are considered, and potential family disputes are minimised.
Don’t let the legal jargon baffle you. At Marc Hardman & Associates, we take pride in our friendly approach. We’re here to simplify the process, eliminate your concerns, and help you grasp every opportunity to secure the future of your assets and loved ones. Reach out to our friendly team today to learn more about how estate planning can help you.
With more than 40 years of experience in the purchase and sale of property and businesses, Marc Hardman and Associates has learned the value of strong partnerships.
Forget the cliches and stereotypes. We’re not what you’d expect from a lawyer.
We’re friendly professionals who will eliminate your concerns, build your confidence, and help you grasp every financial opportunity. From due diligence to fast-tracking contracts of sale, we’ll get the job done.
Marc Hardman & Associates acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander peoples.
With more than 40 years of experience in the purchase and sale of property and businesses, Marc Hardman and Associates has learned the value of strong partnerships.
Forget the cliches and stereotypes. We’re not what you’d expect from a lawyer.
We’re friendly professionals who will eliminate your concerns, build your confidence, and help you grasp every financial opportunity. From due diligence to fast-tracking contracts of sale, we’ll get the job done.
Along with Parramatta and surrounds, we are also available by appointment in Paddington and on the Central Coast.
Marc Hardman & Associates acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander peoples.
