Have you been left out of a loved one’s will?
Maybe you’re just worried that this could happen, and you want to know your rights.
It’s often thought that once someone’s will is in place and they have ascended to heaven (or possibly descended to hell), it’s impossible to mount a challenge.
Well, whether you’ve been left out, or not given a fair share, there are certain things a court will take a look at when you make what is called, a ‘family provision claim’ (also known in Victoria and Tassie as a ‘testator’s family maintenance claim’).
Each state of Australia has a different set of rules which apply when contesting a will. There are different time limits, and eligibility can differ slightly, depending on where the person has died.
Any person can apply for a court order to redistribute a deceased person’s estate in their favour if they believe that the deceased person had a responsibility to provide for them, and did not do so. This area of law, ‘family provision’, exists in some form in all Australian states and territories.
Family provision law recognises that, although people are free to give away their property by will after they die, or to not make a will at all, they also have a responsibility to provide for certain people, usually family members. However, a family provision claim isn’t just restricted to relatives.
Who is eligible to make a family provision claim?
A family provision claim can only be made by an ‘eligible person’.
An ‘eligible person’ usually includes:
- the wife or husband of the deceased
- a person who was living in a de facto relationship with the deceased (including same sex couples)
- a child of the deceased (including adopted children, and in some states a step-children)
- a former wife or husband of the deceased
- a person who was, at any particular time, wholly or partly dependent on the deceased, and who is a grandchild of the deceased
- a person who was, at any particular time, wholly or partly dependent on the deceased and was at that particular time a member of the same household as the deceased.
- a person with who the deceased was living in a close personal relationship at the time of the deceased person’s death
What will the court consider?
Before making an order, the court will consider the following:
- the relationship between the applicant and the deceased person
- any obligations or responsibilities owed by the deceased person to the applicant
- the value and location of the deceased person’s estate
- the financial circumstances of the applicant, including their current and future financial needs
- whether the applicant is financially supported by another person
- whether the applicant has any physical, intellectual or mental disabilities
- the applicant’s age
- any contribution made by the applicant to increase the value of the estate
- whether the deceased person has already provided for the applicant during their lifetime or from the estate
- whether the deceased person provided maintenance, support or assistance to the applicant
- whether any other person is responsible to support the applicant
- the applicant’s character
- any applicable customary law (if the deceased was Aboriginal or Torres Strait Islander)
- any other claims on the estate
- any other matter the court may consider as relevant
How soon after someone dies must I make an application?
Before I mention the timeframes, let me explain quickly about this thing called ‘probate’.
The granting of probate is the approval by the Supreme Court of the deceased’s will. It is granted to the Executor of the deceased person’s estate. Granting it means that the court has found there are no questions regarding the validity of the deceased person’s will. So it’s really important you have any claim on track before this occurs.
Timeframes from state to state
A testator’s family maintenance claim must be made no later than 6 months from the date probate has been granted to the Executor of a deceased estate. A claim may be bought after the 6 month period, if you apply and get approval from the Supreme Court.
However, it’s imperative that the estate has not been distributed after the expiration of 6 months and before your claim has been filed with the court.
A family provision claim must be commenced in the Supreme Court within 12 months from the date of death. The Court has discretion to grant an extension of time if you can show that there is sufficient cause for making a late application.
If a person wants to contest a will in Queensland, first they must give notice to the executor that they intend to contest the will of the deceased. This notice should be in writing and must be given within six months of the date of death.
If a person wants to contest a will in Queensland, and does not give notice of their intention to claim until after six months from the date of the deceased’s death, they can still give their notice outside this time. However, if the estate has been distributed by then, it will be difficult to make any claim.
If the estate has not been distributed at the date when your claim is lodged, there is a final limitation period for your claim of 9 months. So you must have your claim in no later than 9 months after the date of death.
In the ACT, there is a time limit for contesting a Will. You must bring a claim within 6 months from the date probate or administration is granted. Here again, the Court has discretion to grant an extension of time if you can show that there is real cause for making your late application.
In WA you must make a claim on the estate within 6 months of the granting of probate. If you make a claim outside the six months period, you must obtain ‘leave of the Court’ (special permission from the court) to make your application. The Court will also want to know your reasons for the delay.
In South Australia, you have 6 months from the date of the grant of probate to make an application for family provision.
Once again, you can apply to the Court for an extension of time to make an application, but you must have substantial reasons for why there was a delay.
A testator’s family maintenance claim must be made and proceedings commenced no later three months from the date of the granting of probate or letters of administration. So you need to be quick in Tassie.
A family provision application must be made within 12 months of the death of the deceased person.
The Art of Negotiation – An Alternative to Court
Lawyers are very expensive and courts often have long delays in hearing matters.
It may pay you a better dividend to engage in some negotiation. In the first instance you could talk to the beneficiaries (and the Executor) about a potential ‘gift’ to you, if you feel there is a legitimate reason why you should be entitled to or not left out of the estate.
This will obviously require the cooperation of the major beneficiaries, who will have to give up some of their inheritance, so best you enter into these negotiations with more charm than demand. You might also wish to engage a professional mediator (if the other parties are ok), as these people are experienced in helping people resolve differences and move towards agreements.
HEY…Don’t forget to check all our other Family Law Solutions HERE