If there is no Will, a deceased Estate will be distributed in accordance with the rules of intestacy. These rules provide for the distribution of the estate, generally according to which relatives survive the deceased.  For example, if the deceased is survived by their spouse and children, their spouse will receive the household chattels (furniture, whitegoods etc), the first $150,000 of the estate and either half or a third of the residue of the Estate, depending on whether they are survived by one or more children. The children will receive the balance of the estate equally between them.

A family provision claim assumes there is a valid will but asks the court to decide that the provision, if any, made in the Will for the applicant is not adequate, having regard especially to the applicant’s financial circumstances and their relationship with the deceased person. Although a family provision claim is often also described as “contesting” or “challenging” a Will, we have used those terms to describe a claim that the Will is has not been validly made – see “Contesting a Will”.

Strict time limits apply in making a family provision claim. Here are the time frames for all the Australian jurisdictions:

• Queensland – You have six months from the date of death to notify the executor of the estate you intend to make a claim. You have nine months from the date of death to file your application in Court.
• New South Wales – You have 12 months from the date of death to file your application in Court.
• Victoria – You have 6 months from when a grant of probate issues to file your application in Court.
• Western Australia – You have 6 months from when a grant of probate issues to file your application in Court.
• South Australia – You have 6 months from when a grant of probate issues to file your application in Court.
• Tasmania – You have 3 months from when a grant of probate issues to file your application in Court.
• Northern Territory – You have 12 months from when a grant of probate issues to file your application in Court.
• Australian Capital Territory – You have 12 months from when a grant of probate issues to file your application in Court.

There is scope for an extension of time in certain circumstances. You shouldn’t just give up because you perceive you are out of time. It would still be wise to urgently seek legal advice.

It is possible to challenge or contest the validity of a Will for different reasons and on different grounds, for example:

• The deceased did not have capacity when he made his Will;
• The deceased did not know and approve the contents of the Will;
• The Will was made in suspicious circumstances; and
• The Will was the result of fraud or undue influence on the deceased.

If you were financially dependent on someone prior to their death and have been unfairly left out of a Will, then contesting a Will or disputing a Will may not be your only option.

Also, the deceased person may have had superannuation death benefits payable to relatives or anyone who was in a financially dependent on or interdependent with the deceased. It is important that someone who was financially dependent on or interdependent with the deceased makes a claim for any of the deceased’s superannuation death benefits payable.

Depending on whether there is a binding death benefit nomination in place, and how the trustee of a superannuation fund intends to pay the superannuation funds, you may also need to consider lodging a family provision claim or contesting a Will to protect your interests (for example if the superannuation monies are paid into the Estate funds, rather than to you directly).