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.