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Family Provision Claims & Will Disputes

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Whilst a person may choose the way in which they dispose their assets upon death, there is still room for the Court to use its discretion to change the nature and amount of provision. This means that a named beneficiary or even an unnamed beneficiary (provided they can prove eligibility), could be entitled to a greater share of inheritance despite what is written in the will.

If you wish to challenge a will because you believe that your amount of inheritance is unfair or because you have been completely left out of the will, you should get legal advice as soon as possible. You may be able to lodge a claim for “family provision”. A will disputes solicitor can advise you of your eligibility to make a claim, and your entitlements to inheritance. The law relating to family provision claims varies between States and Territories.

Our Australian will disputes lawyers specialise in handling inheritance disputes on a No Win No Fee basis. If you would like further information without obligation, contact our legal team today.

Who can claim inheritance?

To be eligible to make a family provision claim (or inhertitance claim), the applicant has to establish they are within an “eligible category” as defined in the legislation. Depending on the relevant jurisdiction, an eligible person may be a married spouse, defacto, same sex partner, domestic partner, former married spouse, child, step child, grandchild, parent, dependent, persons in a close personal relationship with the deceased, sibling, adopted child.

On what basis is family provision made?

Court cases have held that when a family provision claim is made, the court will consider two important issues. Firstly, was provision (if any) made for the applicant “inadequate for their proper maintenance, education and advancement in life?” Relevant factors to consider include: the applicant’s financial position, the size and nature of the deceased’s estate, the relationship between the deceased and the applicant and also between the deceased and other beneficiaries. The second aspect which the court will determine is the appropriate level of provision to be made for the applicant.

Conduct Disentitling

Sometimes a parent/child relationship breaks down, and the parent will exclude the child from their will, or provide them very little inheritance. The courts have said that to justify disqualifying an eligible person from making a claim, the circumstances surrounding the breakdown of the relationship must be such that the person’s actions, when assessed objectively, amount to conduct disentitling.

Time Limits

The legislation relating to family provision claims varies between States and Territories. If you are going to make a claim, you should see a will disputes solicitor as soon as possible. Time limits apply and you should ask your solicitor what time limit applies in your situation. In some States, the time limit starts to run from the date of death; in other States time runs from the date of grant. The time limit also varies from 3 -12 months. So do not delay in seeking legal advice.




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