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What is the Family Provisions Act?

Family provision is the most common cause for changes to a Will in the supreme court. Making amendments to the distribution of estate assets, it ensures eligible persons receive adequate provision after a person dies. In this blog post, we cover all you need to know on this key succession act- from what family provision is, special circumstances where it is relevant and time limits on making an adequate family provision claim.

Family provision claim

What is the Family Provision Act

The Family Provisions Act is a legal framework which allows eligible individuals to challenge the distribution of assets in a deceased person's estate.

Family provision is relevant for Wills and estates because it provides a pathway for those with a close personal relationship, including family members and dependents, to claim further provision of the deceased person's estate. This covers special circumstances where an eligible person is left in unfair financial circumstances from an unfair distribution in the deceased person's estate.

Similarly, a family provision claim can cover circumstances of suspected undue influence, where there are concerns the deceased person was pressured while they wrote the Will. If the court considers this risk to have influenced the deceased's estate distribution, then distribution may be amended. Under these circumstances, the court may provide more assets to relevant family members, to align with what is judged as adequate provision.

Why does the family provisions matter?

Understanding the Family Provision Act is crucial for anyone involved with estate planning, inheritance disputes, or contested wills. Representing the number one cause for Will amendments in Australia, a family provision claim can have a significant impact on how assets are distributed. Meaning that in some cases, the court may deviate from the original Will to dictate who gets what from the deceased person's estate.

How often is the family provision act used?

Whilst a family provision claim can be used to wholly or partly alter distribution from that outlined by the Will maker- it is only enacted under special circumstances. For this reason, it is still rare.

Depending on the relationship to the deceased, the law recognises only certain people as eligible to apply for a family provision claim. With the rate of contested Wills relatively low, it's generally rare that such changes are made to property or family money distributions.

When are family provision claims considered?

Close relationship to deceased

This depends on your relationship to the will maker, as well as whether you were dependent on the deceased person, and what your financial circumstances are. An eligible person could be:

  1. Spouse or de facto partner: including a person who was legally married or a partner to the deceased at the time of their death

  2. Children: This includes biological or adopted children of the deceased, as well as step children or grandchildren who were dependent on the deceased.

  3. Dependents: a person who was wholly or partially dependent on the deceased at the time of their death, such as a parent, sibling, or former spouse, can also be classed as an eligible person.

The eligibility criteria does vary slightly between different states and territories in Australia.

However, in general, those with a close personal relationship who are inadequately provided for by the deceased's estate represent an eligible person. This is especially relevant if the person seeking a family provision was wholly or partly dependent on the deceased, on a financial level.

Financial need or dependency claim for provision

Eligible persons must also meet relevant financial circumstances before the court considers their application valid.

For a family provision claim to be successful, the eligible person needs to demonstrate their needs are not met under the current deceased's estate distribution. Other factors, such as dependency from disability, can demonstrate a need for an additional provision.

Validity of Will Under Question

If there are questions and legitimate evidence over undue influence concerns, this provides a basis for a family provision claim on the deceased's estate.

This includes if the deceased person had a mental disability, was vulnerable to undue influence from personal care, or if they lacked the capacity to make a valid Will without this influence.

Likelihood of success on family provision claim

If the court considers the person seeking added provision a close, dependent family member then this is a starting point in amending the initial estate provision. If this eligible person can then demonstrate a greater share to the deceased's estate would help them meet their needs- a family provision claim may be successful.

Similarly, if the validity of the Will is brought into question to explain a lack of provision to the surviving spouse of the family, then a family provision claim could be used by the court to make adequate provision.

The process of making a family provision claim

How long do the courts take to process a family provisions claim?

A family provisions claim application in Australia can vary depending on the nature and extent of the claim, as well as if the person making the claim has sufficient cause.

Circumstances such as the complexity of the case, the court's workload, and whether the claim is resolved through negotiation or goes to trial, will also influence how long a family provision claim takes to be processed.

What creates delays in a family provision claim?

In general, the supreme court might take several months to a year. This can even be longer, and is partly dependent on if the family provision claim is contested by other parties, or if there are disputes over the value or distribution of assets.

Time limits for making a Family Provision Application

When making a family provision claim on a deceased estate, there are important time limits enforced by the supreme court. These vary depending on the state, including general time limits of:

  1. New South Wales: A Family Provision Application must be made within 12 months of the date of death of the deceased.

  2. Victoria: within 6 months of the date of grant of Probate or Letters of Administration.

  3. Queensland: within 9 months of the date of death of the deceased.

  4. Western Australia: within 6 months of the date of grant of Probate or Letters of Administration.

  5. South Australia: within 6 months of the date of grant of Probate or Letters of Administration.

  6. Tasmania: within 3 months of the date of grant of Probate or Letters of Administration.

  7. Northern Territory: within 6 months of the date of grant of Probate or Letters of Administration.

For all states, there are extensions granted under special circumstances. As the person making an application, it's important to seek legal advice to understand the extent to which these may apply to you.

Cost of a Family Provision Claim

Much like time frames, the cost of a family provision claim varies depending on the complexity of the case, the amount of assets involved, and the legal fees charged by your specific lawyer.

In general, the cost of making a family provisions claim come from:

  • Legal fees (hourly rate, fixed fee or percentage of provision)

  • Supreme court fees (filing fees & court service fees)

  • Provision evidence fees (from medical or financial reports to provide the extent of your need or dependency on the estate)

Given that the circumstances of a family provision claim are linked to financial need, there are legal aid options to help wholly or partly fund your claim. Whilst legal fees can be expensive, it is important to seek legal advice for your state- and ensure the particular time and details of your family provision claim are correct.

Below are a list of matters the Court considers in relation to a Family Provision application

  1. A will maker has a large estate and leaves the majority of it to a charity- with only a small amount left to their adult children who are in financial need, the court may find that the deceased's estate fails to adequately provide for their children. In this case, they grant family provision based on the extent of the need.

  2. A will maker leaves a significant amount of their estate to one child, but completely excludes another child who is in financial need, and has a close relationship with them. The court may find that the exclusion was unfair and grants family provision to the excluded child.

  3. A will maker leaves their entire estate to their second spouse, excluding children from their previous marriage. Finding that the children should have been provided for, the court makes family provision.

Family provision orders when someone died intestate

When a person dies without leaving a valid will, their estate is distributed according to the rules of intestacy. Any eligible person who believes their subsequent provision is inadequate may still be able to make a Family Provision claim. This includes those with a close personal relationship to the deceased, who have wholly or partly been left out of the Will.

In deciding whether or not to grant family provision, the court will also consider the needs of other potential beneficiaries and any moral obligations the deceased may have had.

Seeking legal advice is crucial to ensure the nature and extent of your claim is within the time limit. Similarly, a solicitor comes with the added benefit of providing peace of mind, education or advancement on the next steps for your claim.

Given the costs of making a family provision claim, it's at this particular time that seeking legal advice can save you the hassle and cost if your claim is not eligible.

How Safewill Can Help

Safewill Legal provides affordable, flexible and expert legal advice to help you write your Will. Our online platform is the easiest way to reflect any close personal relationship in your asset distribution, and avoid contested Wills or family provision claims further down the line.

Our subscription option also allows for proper maintenance of your Will. In keeping your asset distribution wishes constantly updated, your Will reflects changing life circumstances. From changes to property and assets in your estate, to how a relationship changes over time.

For legal advice on writing your Will today, reach out today on 1800 103 310 , or via live chat now.

Last updated 15th March 2023
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Hannah Comiskey
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