What happens if a family member does not provide for you in their will?
It is always difficult when a loved one passes away. But this can be made significantly worse when someone discovers that they have not received the provision under the will that they expected. What can you do if you think you have not been properly provided for?
The law provides for certain family members to challenge a will on the basis that the will-maker did not adequately provide for them under the Family Protection Act 1955.
Who can make a claim?
The Family Protection Act entitles the following people to make a claim:
- the spouse or civil union partner of the deceased;
- a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death;
- the children of the deceased;
- the grandchildren of the deceased;
- the stepchildren of the deceased (if they were being maintained wholly or partly or were legally entitled to be maintained wholly or partly by the deceased immediately before his or her death); and
- the parents of the deceased (in limited circumstances).
There is no provision for siblings of a deceased to make a claim.
What does it take for a claim to succeed?
To succeed, a claimant must convince the Court that the will-maker failed to “provide adequately for the claimant’s proper maintenance and support”. This does not just reflect economic need, but also the importance of recognising a claimant’s importance as part of the family.
It’s important to note that mere unfairness or disparity between beneficiaries is not sufficient to bring a claim under the Family Protection Act (for example, that one sibling got less than the others).
The success of a claim will depend on the particular facts of the case, but relevant factors include:
- The economic need of the claimant;
- The size of the Estate and the competing moral claims of other family members and beneficiaries under the will;
- The duration and nature of the claimant’s relationship with the deceased;
- Any gifts made to the claimant during the deceased’s lifetime; and
- Whether there was a rift between the deceased and the claimant and, if so, who was responsible for that.
If successful, the Court is still limited to awarding no more than what is necessary to give adequate provision. The Court will not rewrite a will on the basis of what someone else considers to be fair.
Timeframe for a claim
In order to be effective, a claim must be brought against an Estate before the funds of the Estate have been finally distributed to the beneficiaries.
Where an executor has no notice of any claim against the Estate, the executor can distribute the Estate’s assets 6 months after probate is issued.
Under the Administration Act 1969, a potential claimant can prevent distribution of the Estate for 3 months if notice is given to the Executor that he or she intends to challenge the Estate. To get the most out of this 3 month window, notice of intention should be given just prior to 6 months after probate. This extension can only be obtained once, after which the Executor is safe to distribute if no Court proceedings have been served on the Estate.
Any claim must also be brought within 12 months from the date of probate (we explain probate in this article). A claimant can apply to the Court for leave to extend this timeframe, but extensions are rare and will only succeed if the Estate has not already been distributed.
How to make a claim
A Family Protection Act claim can be brought in either the Family Court or the High Court. The appropriate court will depend on the size of the estate, the complexity of issues, and whether there are already other proceedings relating to the Estate.
The documents required to initiate a claim differ depending on which Court is being used.
Once a claim is brought, it will need to be served on the Estate and other beneficiaries, who can then choose to oppose the application. Where a claim is opposed, the Court will usually ensure that the parties have the opportunity to attend some form of mediation to try and resolve the dispute without the need for a full hearing.
We have experience in both bringing and defending claims in both courts, and in resolving disputes between beneficiaries. Please contact us to see how we can be of assistance.
This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.
