Family Provision Claim Act – What is it? How can it affect your Will?

Family Provision Claim Act – What is it? How can it affect your Will?

A family provision claim is a claim against the Estate of a deceased person. A family provision claim is made on the basis that the person claiming against your Estate has not been adequately provided for in your Will for their proper maintenance, education or advancement in life.

Under the legislation only ‘eligible persons’ are entitled to make a family provision claim against a deceased estate. ‘Eligible persons’ include:

  • The spouse or de facto partner of the deceased;
  • A child of the deceased;
  • An ex spouse of the deceased;
  • A person who was, at any time, wholly or partly dependent on the deceased and who was a grandchild of the deceased or a member of the household of the deceased; and
  • A person who was living in a close personal relationship with the deceased. A close personal relationship is a relationship between two adult persons, who are living together, one or each of whom provides the other with domestic support and personal care.

How can a family provision claim affect your Will?

If a family provision claim is successful it will mean that the division of your Estate under your Will will be altered. The alteration will be to provide adequate provision for the proper maintenance, education or advancement in life in favour of the person who made the family provision claim.

When determining whether to make a family provision order the Court is required to consider the following factors:

  1. The relationship between the person applying for the family provision order and the deceased including nature and length of the relationship;
  2. The nature and extent of the deceased’s estate;
  3. The financial resources and financial needs of the person applying for the family provision order and any other beneficiaries under the Will;
  4. The financial circumstances of any person living with the person applying for the family provision order;
  5. Any physical, intellectual or mental disability of the person applying for the family provision order;
  6. The age of the person applying for the order;
  7. Whether the person applying for the order contributed to the estate of the deceased and did not receive adequate consideration;
  8. Evidence of the testamentary intentions of the deceased; and
  9. The character and conduct of the person applying for the family provision order.

What to do?

To avoid a family provision claim on your Estate once you have died the best thing to do is seek expert legal advice. At Heckenberg Lawyers we will talk to you about the people who may have a claim on your Estate and how to minimise family provision claims when drafting your Will.

At Heckenberg Lawyers we don’t take our clients’ confidence for granted: we work hard to earn it by providing an efficient, cost effective service which puts your interests first and doesn’t cut corners. We take pride in achieving repeat custom and winning clients by word of mouth recommendation.

If you need advice about a Will or an Estate matter please call 02 9221 2779 or email info@hecken.com.au to arrange an initial consultation with principal lawyer Graeme Heckenberg at our centrally located Sydney offices.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.