Family Provision Claims

Family provision claims arise when someone dies and their Will (or the rules of intestacy) doesn’t provide for the proper maintenance, education or advancement in life of a person who would be generally regarded as someone a person should recognise in their Will. Claims are an application to the court for proper provision to be made.

 There are 6 categories of persons who can apply for a family provision claim:

1.       Married spouse;

2.       De facto spouse;

3.       Child;

4.       Former married spouse;

5.       A person who was at any time wholly or partly dependent and is either a grandchild, or was a member of the deceased’s family; or

6.       Person with whom the deceased lived in a close and personal relationship at the time of death.

The various categories of persons who apply come with different thresholds and considerations. For example, it may be more difficult to obtain an order for family provision under category 4 than it may be under category 1.

Essentially, the legislation recognises that people may be obliged to provide for certain persons in their life, and if they have not done so, the relevant person can request that provision nevertheless be made for them.

To be successful in a claim, you must establish that you have received inadequate provision from the will.  The court will consider many factors in coming to a decision.  The relationship between the claimant and the deceased person will be considered.  Also, what obligations or responsibilities the person had towards you.  The nature and size of the estate will be taken into account, as well as your financial resources and those of other beneficiaries.  For example, if the estate is small, you are wealthy and other beneficiaries have high needs, your application may not be successful.  However, if the estate is big, you may be entitled to further provision. 

Generally, a person has 12 months from the date of death to make a claim for family provision.