Family Provision Claims
When a person dies leaving a will that does not make adequate provision for one or more members of their family, the will may be contested on this basis. This is known as a family provision claim. Each state and territory has its own laws governing who may make a family provision claim. This page outlines who is eligible to make a family provision claim in each jurisdiction of Australia.
In Queensland, family provision claims are governed by the Succession Act 1981.
Under section 41 of the Succession Act 1981, only the deceased’s spouse, child or dependent have an unconditional right to make a family provision claim. Other categories of relatives such as siblings, grandchildren and nieces and nephews can only contest the provisions of a will if they were dependent on the testator.
New South Wales
In New South Wales, family provision claims are governed by the Succession Act 2006.
- De facto partner
- Former spouse
- A grandchild or member of the household of the deceased who is wholly or partly dependent on the deceased
- A person who was in a close personal relationship with the deceased at the time of their death.
In Victoria, a family provision claim can be made by a deceased person’s:
- Spouse or partner
- Child who at the time of the deceased’s death was under 18, child who was under 25 and a full-time student, or child who has a disability;
- Former spouse or partner who would have been able to take proceedings under the Family Law Act 1975
The following categories of person can also make a family provision claim but must show that they are in a position of financial need and have no one else who can support them:
- An adult child of the deceased
- The deceased’s carer
- A grandchild of the deceased
- A spouse or partner of a child of the deceased
- A member of the household of the deceased
In the ACT, the Family Provision Act 1969 governs who can contest a will.
Under section 7 of the Family Provision Act 1969, partners and children have an unconditional right to apply for provision out of a deceased estate.
The following classes of person have a conditional right to apply for provision:
- Persons who were in a domestic relationship with the deceased for a period of more than two years
However, other eligibility factors must be established for claims to be made by these classes of relatives. For example, a parent may make a claim only if the deceased died without a partner or children.
In Western Australia, the Family Provision Act 1972 governs family provision claims.
Under section 7 of the Family Provision Act 1972, a claim can be made by the deceased’s:
- Spouse or partner
- A person who was entitled to maintenance from the deceased as a former spouse or partner
The following categories of person may also bring a claim, subject to certain conditions:
In South Australia, the Inheritance (Family Provision) Act 1972 sets out who may contest a will. Under section 6 of the Inheritance (Family Provision) Act 1972, a claim may be made against a deceased estate in South Australia by:
- Spouses, partners or former spouses
A claim can also be made by other relatives subject to further eligibility criteria. For example, a parent or sibling can make claim if they cared for or contributed to the maintenance of the deceased during their lifetime. A child of the deceased’s spouse or partner can make a claim if they were maintained wholly or partly by the deceased before their death.
In the Northern Territory, the Family Provision Act 1970 governs who may make a family provision claim.
Under section 7 of the Family Provision Act 1970, a deceased person’s spouse, partner and children are unconditionally eligible to make a claim.
The following classes of person may also make a claim if they fulfil other eligibility criteria:
- Former spouses and partners
How are family provision claims assessed?
A family provision claim will be assessed based on a range of factors including the applicant’s financial position, whether any other person is able to support them, the relationship they had with the deceased, the size of the estate, the claimant’s standard of living, whether the deceased made any promises to the claimant and the strength of any other competing claims.
Strict time limits apply when contesting a will and these differ between different states and territories. While in some jurisdictions, the time for filing a claim is calculated from the date of the deceased’s death, in others the period starts on the date that probate was granted. It is important to seek legal advice as soon as possible if you are considering making a claim against an estate, to ensure any applicable time limits are met.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.