Family provision claims arise where a will maker doesn’t make adequate provision in his or her will for family members. In each of the states of Australia, the law casts an obligation upon a will maker to make adequate provision for certain persons. The definition of ‘certain persons’ differs from state to state. In Queensland, a will maker ought to make adequate provision for the following persons:
· Former spouse (in limited circumstances);
· A dependent (in limited circumstances).
It is at the discretion of the court as to whether or not family provision claims are successful. Not every applicant will be successful and not every applicant is eligible. The key is to seek advice from an expert in succession law.
The important thing to remember with family provision claims is that the test is not to establish what the deceased intended under the will. The court must simply decide whether or not provision ought to be made to the applicant based on a number of things:
Whether any provision you have already received is adequate for your proper maintenance, education and advancement in life.
Competing claims of other eligible persons or beneficiaries. You may not be the only person who was cut out of the will.
The nature and duration of your relationship with the person who has passed away.
Your financial resources and earning capacity.
The size of the estate. For example, you may pass all the criteria to make a successful family provision claim, but if there is only $20,000.00 in the estate, then there is very little scope for a Court to order provision.
The financial circumstances of people you cohabit with, such as your spouse or de facto.
Contributions you made, both financial and non-financial, to the person who has passed away.
Any provision the deceased person made for you during their lifetime.
The area of law surrounding family provision claims is complex. Advice should always be sought urgently as there are tight time frames. In Queensland, you only have 9 months from the date of death and notification must be made within 6 months from date of death.