Do you feel that you have been unfairly left out of a Will?

A person may leave their assets to whoever they wish.  However, the law recognises that there are those who may have relied upon the deceased for support, who are sometimes left out of the Will.  If you feel this is you or someone you know, please continue to read.

What is a family provision claim?

A family provision claim refers to an application for an order for provision to be made out of the estate for a person’s maintenance, education or advancement in life.  In the ACT, claims are governed by the Family Provision Act 1969.

Time limits on making a claim

In the ACT, the time for bringing a claim is within 6 months from the date probate or administration is granted by the Supreme Court.  The Court has a discretion to extend time, where sufficient cause for making a late application can be demonstrated, except after the estate has been lawfully and fully distributed to beneficiaries.

Who can make a claim?

The legislation sets out the classes of persons who are entitled to make application to the Court for the provision out of the estate of a deceased person.  The Court has no discretion to permit an application from a person who is not an eligible person, even in exceptional circumstances.

Eligible persons in ACT

In the ACT, the categories of persons who may be entitled to make a claim are:

  • A partner of the deceased;
  • A person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 more years continuously at a time;
  • A child of the deceased person;
  • A stepchild of the deceased person;
  • A grandchild of the deceased person; and
  • A parent of the deceased person.

There are some conditions in respect to a stepchild, grandchild or parent that need to be considered and satisfied before making a claim.

Consideration that the Court makes

The Court when determining whether to order provision for the applicant may consider the following:

(a) Any family or other relationship between the deceased person, including the nature and the duration of the relationship;

(b) The nature and extent of the deceased persons’s estate and any liabilities of the estate;

(c) The nature and the obligations or responsibilities owed by the deceased person to the person making the claim (applicant);

(d) The financial resources (including earning capacity) and financial needs, both present and future) of the applicant;

(e) If the applicant is cohabiting with another person – their financial circumstances;

(f) The age of the applicant when the application is being considered;

(g) Any physical, intellectual or mental disability of the applicant;

(h) Any contribution (whether financial or otherwise) by the applicant to the acquisition, conversation and improvement of the estate of the deceased person;

(i) Any provision made for the applicant made by the deceased person, either during the deceased person’s lifetime or made from the deceased’s person’s estate;

(j) Any evidence of the testamentary intentions of the deceased person;

(k) The character and conduct of the applicant before and after the date of the death of the deceased person;

(l) Any other the matter the court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered by the Court.

Costs

In the ACT, the Judge has discretion regarding legal costs in family provision cases.

If you are successful as the applicant and you receive an order for provision, normally the estate will pay your ordinary costs.  However, if you receive no order for provision, the Court may order that you pay the defendant’s legal costs.

If you feel that you have been treated unfairly or left out of a will, please do not hesitate to contact us to discuss the possibility of a family provision claim.

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