“My third cousin twice removed wants a chunk of my estate”! The ins and outs of Family Provision Claims.

No, just no. In most circumstances, your third-cousin twice removed can’t claim against your estate, nor can that high-school girlfriend from twenty years ago. And forget your neighbour-he’s still worried about your dividing fence. The media loves pumping up a great story about a contentious estate matter, about the estranged son, the secret mistress, or even the humble cleaning lady. But what and how can family provision come about?

Who can claim?

  • A Husband Or Wife Of The Deceased At The Time Of The Deceased’s Death
  • A Person With Whom The Deceased Was Living In A “De Facto Relationship” At The Time Of The Deceased’s Death
  • A Child Of The Deceased (This May Include Step-Children In Some Circumstances)
  • A Former Wife Or Husband Of The Deceased
  • A Grandchild Of The Deceased Who Was At Any Particular Time Wholly Or Partly Dependent On The Deceased
  • A Person Who Was At Any Particular Time Wholly Or Partly Dependent On The Deceased And At That Particular Time Or Any Other Time, A Member Of A Household Of Which The Deceased Was A Member
  • A Person With Whom The Deceased Was Living In A “Close Personal Relationship” At The Time Of The Deceased’s Death

What is their entitlement?

The courts use the terms “adequate and proper provision” to describe what a claimant is entitled to. What does this look like? Well, it varies based on the relationship with the deceased.

Proper extends beyond a monetary value, but rather a consideration of all relevant surrounding circumstances. The use of the word proper also means that attention may be given when deciding if adequate provision has been made – how the parties live and might reasonably expect to live in the future.

Adequacy is not just whether or not the claimant has enough to live or live comfortably – it depends on all relevant circumstances which includes a deceased’s promise, circumstances in which it was made, changes in arrangements after it was made. The claimant’s age and capacities, means, and competing claims of all potential beneficiaries must also be taken into account.

How long do I have to make a claim?

An application for family provision must be made within twelve months from the date of death. This is a strict time frame and the courts will only extend this in exceptional circumstances on the rare occasion.

What else is taken into account?

The Act lists a number of matters which may be considered by the Court:

  1. The relationship between the claimant and the deceased;
  2. The nature and extent of any moral obligations owed by the deceased to the claimant;
  3. The nature and extent of the deceased’s estate and any liabilities of the estate;
  4. The financial resources and needs (present and future) of the claimant;
  5. The financial circumstances of any person cohabiting with the claimant;
  6. Any physical or intellectual disability;
  7. The age of the claimant;
  8. Any contribution made by the claimant to the acquisition of the estate assets;
  9. Provision made for the claimant during the deceased’s lifetime;
  10. Any evidence of testamentary intention;
  11. Whether the claimant was maintained wholly or partly by the deceased before their death;
  12. Is any other person liable to support the claimant;
  13. The character and conduct of the claimant before and after date of death;
  14. The conduct of any other person before and after the date of the death;
  15. Any relevant Aboriginal or customary law; and,
  16. Any other matter the court considers relevant.

This is just a drop in the ocean about the complexities involved in family provision. And back to your third cousin twice removed, well, he or she can only get a look in if they can prove a close personal relationship with the deceased. But it’s not just about claiming for a chunk of money. Obviously if your third cousin twice removed is James Packer, well I’d have to question whether or not he really has a financial need. The moral of this story is that the courts don’t just dish out cash to greedy relatives as they come forward, there is a statutory framework in place with a lengthy criterion. As always, don’t rely on this as legal advice, seek out professional advice if you need assistance with a family provision matter.

Photo by Tyler Nix on Unsplash

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