Family Provision Claims

Family Provision Claims and Will Disputes

If you have been left out of a Will or feel that you haven’t been adequately provided for in the Will, you may be entitled to make a claim for further provision from the estate of the deceased person. The Succession Act 2023 governs Family Provision Claims in South Australia and ensures that eligible persons can seek adequate provision for their needs.

A Family Provision Order is a Court order that directs a portion of the deceased person’s estate to be allocated to an eligible claimant who has not been adequately provided for under the Will or the rules of intestacy. The purpose of such an order is to ensure that the claimant receives sufficient provision for their proper maintenance, education, or advancement in life, taking into account their circumstances and the wishes of the deceased.

Who Can Make a Family Provision Claim?

Under the Succession Act 2023, the following categories of people may be eligible to make a claim for a Family Provision Order:

1. Spouse or Domestic Partner:

1. • The spouse or domestic partner of the deceased person.

2. Former Spouse or Domestic Partner:

1. • A former spouse or domestic partner, but only if no binding financial agreement or property settlement order was in place at the time of death.

3. Children:

1. • A child of the deceased person.

4. Stepchildren:

1. • A stepchild of the deceased person, but only if they can demonstrate one of the following:
     • They are disabled and significantly vulnerable by reason of their disability.
     • They were dependent on the deceased at the time of death.
     • They cared for or contributed to the maintenance of the deceased immediately before death.
     • They substantially contributed to the estate of the deceased.
     • Assets accumulated by their parent (other than the step-parent) substantially contributed to the estate of the deceased.

5. Grandchildren:

1. • A grandchild of the deceased person, but only if:
     • Their parent (a child of the deceased) predeceased the deceased; or
     • They were wholly or partly maintained by the deceased immediately before death.

6. Parents:

1. • A parent of the deceased person, but only if:
     • They cared for or contributed to the maintenance of the deceased immediately before death; or
     • They were maintained by the deceased immediately before death.

7. Siblings:

1. • A sibling of the deceased person, but only if they cared for or contributed to the maintenance of the deceased immediately before death.

What Will the Court Consider?

When determining whether to make a Family Provision Order, the Court’s primary consideration is the wishes of the deceased person, as expressed in their Will or other evidence. The Court will also consider:

• The applicant’s vulnerability and dependence on the deceased.
• The applicant’s contribution to the estate of the deceased.
• The character and conduct of the applicant.
• Any evidence of the deceased’s reasons for their testamentary dispositions.
• Any other matter the Court considers relevant.

The Court must also take into account any government welfare payments received by the applicant and whether a Family Provision Order could worsen their financial position.

Time Limits for Making a Claim

Strict time limits apply to Family Provision Claims. An application must be made within 6 months of the grant of probate or letters of administration.

In limited circumstances, the Court may grant an extension of time, but this is rare and subject to strict conditions.

Unmeritorious Claims and Security for Costs

To discourage unmeritorious claims, the Court may require a party to provide security for costs if it appears that their claim lacks merit or they are unwilling to negotiate a settlement.

This is a requirement for a party to provide a financial guarantee to cover potential legal costs if their claim is deemed unmeritorious or unlikely to succeed.

This ensures that only genuine claims proceed and protects beneficiaries from unnecessary legal costs.

Challenging a Will

In some circumstances, it is possible to challenge the validity of a Will due to factors such as:

• Mental incapacity of the deceased at the time the Will was made.
• Undue influence or pressure exerted on the deceased.
• Suspicious circumstances, such as the Will being prepared or signed shortly before death.
• Forgery or fraud in the preparation or execution of the Will.

If a Will is found invalid, an earlier valid Will may be admitted to probate. If no earlier Will exists, the estate will be distributed under intestacy rules.

How We Can Help

At Websters Lawyers, we can assist you with:

• Determining whether you are eligible to make a Family Provision Claim under the Succession Act 2023.
• Advising you on the steps involved in pursuing a claim or challenging a Will.
• Representing you in negotiations or Court proceedings to achieve a fair outcome.
• Providing guidance to executors and beneficiaries defending claims, including advice on their roles, responsibilities, and strategies to protect their interests.

We understand that disputes over Will and Estates can be sensitive and emotionally challenging. Our experienced estate litigation lawyers take a proactive and pragmatic approach to resolving disputes in a cost-effective and timely manner.

Free Initial Consultation

At your first free initial consultation, we will:

• Review your instructions and any documents provided.
• Advise you on the merits of your claim and explain the steps involved in making a claim or defending one.
• Provide an estimate of costs for pursuing or defending such an action.

Call us now on (08) 8231 1363 or click here to make an enquiry by email. Let Websters Lawyers help you navigate this challenging time with expert advice and practical solutions.