The death of a family member is always an emotional time and discovering that you have been left out of the Will or will receive less than you were expecting can be a huge shock. Where do you stand in these circumstances?
It is not enough to say that because you are one of the deceased’s four children, then you should receive one-quarter of the estate. The law considers that a willmaker is entitled to exercise their right to express their testamentary intentions in any way they chose, subject to the requirement that a willmaker must provide for those to whom they owe a moral obligation for their maintenance, education and advancement in life.
The first thing to be aware of is that there a time limit to make a claim for provision from an estate – 12 months from the date of death.
If you believe that may have a claim then you should contact a solicitor as soon as possible to get advice on your entitlement to make a claim. Extension of the time limit can only be granted by the Court.
Eligibility to Claim
There are certain classes of “eligible persons” who are entitled to make a claim for provision:
- de-facto spouse
- child of the deceased
- a grandchild or member of the deceased person’s household who was wholly or partly dependent on the deceased
- a person who was in a close personal relationship with the deceased at the time of their death.
For the last three classes, it is necessary to show that there are “factors warranting” a claim for provision from the estate. There is no list of factors in the legislation, but the court has interpreted “factors warranting” to mean factors which would give the claimant the status of a person who would be regarded as someone that the deceased would naturally have included in their will. For example, a niece who lived with her elderly aunt in her home and provided (unpaid) care for her aunt so that she didn’t need to move into an aged care facility could demonstrate that she was an eligible person as she is living in a close personal relationship with her aunt and she would have a reasonable expectation of being provided for in her aunt’s Will.
Need for Provision
No matter which class a claimant falls into, it is necessary to show that they have “need” before provision will be awarded for them from the estate. If the claimant is employed, owns their own home, has superannuation, few debts and is good health, then their need will be difficult to establish, unless the estate is quite large, and there are no other competing claims on the estate.
If the estate is small and the only other beneficiary of the estate has minor dependants, doesn’t own their own home and works part-time, then the claimant would have difficultly showing that their need is greater than the beneficiary’s.
This is a very brief overview but if you believe you may be an “eligible person” and have a claim on a deceased estate, contact Cominos Family Lawyers on 8999 1800 to discuss your specific situation in detail.