It may come as a shock to learn you have been left out of a will. While the testator (will maker) is free to write their will in any way they like, all Australian jurisdictions have special laws to provide for qualifying people who have been left out of the will. These laws are known as family provisions.
The Supreme Court has discretion to adjust distributions made in the will where the testator failed to adequately provide for their dependents. The express intentions of the testator are considered, however the court can consider if terms of the will are unusual and override those terms.
Who can claim for family provision?
For a claimant to be eligible for a family provision claim they must meet 2 requirements;
- The applicant falls within the statutorily prescribed categories of eligible dependents.
- The applicant can show there have been inadequate provision made for them under the will. If the deceased did not have a will the applicant can also claim a provision under the scheme of intestacy; where the entire estate falls to the most senior next of kin.
Who is an eligible dependent?
- Spouses. Current spouses may apply in all states. As each Australian jurisdiction has differing succession law, former spouses are only able to apply in some states and circumstances. When former spouses apply the court will consider the financial arrangement and dependency of the former spouse to the deceased. Considerations may include; maintenance agreements, property settlements and the contribution made by the former spouse to the deceased’s estate that has not been compensated for.
- De facto spouses. The definition of a de facto spouse varies considerably between Australian jurisdictions. Definition could be based on the existence of a domestic relationship certificate, the duration of the relationship or may look to how the state defines a de facto relationship.
- Children. The deceased’s child may apply regardless of age. The position of step children varies from state to state.
- Dependency. In NSW, family provision legislation extends beyond family to include any person who;
- Was at any particular time wholly or partly dependent upon the deceased person; or
- Was deceased’s grandchild and lived with the deceased at any time; or
- Was a person with whom the deceased was in a close personal relationship with at the time of their death. (Two adults that live together, but not for payment or as a charitable agency)
Time limits
Family provision applications can hold up the distribution and settlement of a deceased estate, so all Australian jurisdictions have time limits for making a claim. A claim must be made within 12 months of the date of death in NSW, and within 9 months in Queensland. All other states and territories vary between 3 and 12 months from either the date of death or the date of issuing the grant of representation.
Where a family provision claim is successful it can’t change any distributions already made. This means that if some people named in the will have already received their inheritance, this cannot be retracted. Only assets which have not been distributed can be used to meet the claim. If all assets have been distributed, then no claim can be paid.
Considerations for the court
The court considers if an applicant has been left without proper maintenance and support. In consideration of this the court will review; the applicant’s position in justifying the support; the size and nature of the estate; the relationship between the applicant and the deceased; the relationship between the applicant and others with legitimate claims on the estate.
With the above factors taken into consideration, it is then up to the court to determine what will be an adequate and proper maintenance to be made from the deceased estate. ‘Adequate’ is generally considered to be the actual needs of the applicant, such as cost of university, housing or living expenses. ‘Proper’ requires consideration of all the facts and circumstances, such as the size of the estate, relationship between the applicant and the deceased and needs of the other beneficiaries.
A family provision claim only considers ‘adequate’ and ‘proper’ maintenance from the time of the death. It does not compensate for any financial loss or exclusion while the deceased was still alive.
A family provision applicant may be deemed ineligible due to character and conduct. For example, an applicant who is a drug user or has a criminal past may disentitle them from making a claim. The definition of character and conduct can also change over time. For example, a son marrying against his father’s wishes may have disentitled him 70 years ago, however in current times it is considered an insufficient reason to exclude a child from a will.
What property can be put towards a claim?
Except NSW, all jurisdictions only allow a family provision claim to be made from assets in the deceased estate. For example, if a testator had an estranged son and anticipated a family provision claim, the testator may sell his property and gift millions to his daughter in his final years. The liquidated property and cash paid to the daughter can’t be used for a family provision claim.