The Court has the power to override the content of a persons will and adjust "who gets what" upon successful application by an eligible person. This is referred to as a family provision claim. Here in Australia, each state and territory has its own laws governing who is eligible to make a family provision claim. In this blog, we will consider who is eligible to make a family provision claim in various jurisdictions.
New South Wales
In New South Wales, family provision claims are governed by the Succession Act 2006.
According to section 57 of the Succession Act 2006, a claim can be made in New South Wales by the following limited categories of eligible people:
a. Spouse
b. De facto partner
c. Child
d. Former spouse
e. A grandchild or member of the household of the deceased who is wholly or partly dependent on the deceased
f. A person who was in a close personal relationship with the deceased at the time of their death.
Notably step children and former de facto spouses are not listed as eligible persons and so they would be required to invoke "e" or "f" to be eligible.
Queensland
In Queensland, family provision claims are governed by the Succession Act 1981.
Pursuant to section 41 of the Succession Act 1981, 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 are only eligible if they were dependent on the testator.
ACT
In the ACT, the Family Provision Act 1969 sets out who is eligible to make a claim.
Pursuant to 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 people have a conditional right to apply for provision:
a. Stepchildren
b. Grandchildren
c. Parents
d. Persons who were in a domestic relationship with the deceased for a period of more than two years
NOTE: additional eligibility factors must be established for claims to be made by these classes of people. For example, a parent may make a claim only if the deceased died without a partner or children.
South Australia
In South Australia, the Inheritance (Family Provision) Act 1972 sets out eligible people to make a claim. Pursuant to section 6 of the Inheritance (Family Provision) Act 1972, a claim may be made against an estate in South Australia by:
the spouse of the deceased person;
a person who has been divorced from the deceased person;
the domestic partner of the deceased person;
a child of the deceased person;
a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
a child of the child of the deceased person;
a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;
a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
Western Australia
In Western Australia, the Family Provision Act 1972, is the applicable act.
Pursuant to section 7 of the Family Provision Act 1972, a claim can be made by the deceased’s:
Spouse or partner
Child
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:
Grandchild
Stepchild
Parent
Northern Territory
Pursuant to section 7 of the Family Provision Act 1970 the following categories of people are eligible to make a family provision claim:
(b) a former spouse or de facto partner of the deceased person;
(c) a child of the deceased person;
(e) a grandchild of the deceased person;
(2) A person, being:
(a) a former spouse or de facto partner of a deceased person; or
is not entitled to make an application to the Court for provision out of the estate of the deceased person unless the person was maintained by the deceased person immediately before his or her death.
(3) A grandchild of a deceased person is not entitled to make an application to the Court for provision out of the estate of the deceased person unless:
(a) the parent of the grandchild who was a child of the deceased person died before the deceased person died; or
(b) one or both of the parents of the grandchild was or were alive at the date of the death of the deceased person and the grandchild was not maintained by that parent or by either of those parents immediately before the death of the deceased person.
(4) A parent of a deceased person is not entitled to make an application to the Court for provision out of the estate of the deceased person unless:
(a) the parent was maintained by the deceased person immediately before his death; or
(b) the deceased person was not survived by a spouse or de facto partner or any of the children of the deceased person.
(7) For the purposes of this section, a person shall not be regarded as having been maintained by the deceased person immediately before his death unless:
(a) there was in force at that time an order of a court requiring the deceased person to pay maintenance to or for the benefit of the other person;
(b) the deceased person was, at that time, whether under an agreement in writing or otherwise, maintaining that other person or making a contribution to the maintenance of that other person, being a contribution that, in all of the circumstances, can be regarded as other than a nominal contribution; or
(c) a court would, if the deceased person were still living, have power to make an order requiring the deceased person to pay maintenance to or for the benefit of the other person.
(8) For the purposes of this section, a child of the deceased person born alive after the death of that person shall be regarded as having been born before the death of the deceased person.
Victoria
If a person has been left without adequate provision from a deceased person's estate in Victoria, certain eligible people can make a "Testators Family Maintenance Claim". Eligible persons are set out within section 90 of the Administration and Probate Act 1958.
In Victoria, a family provision claim can be made by the following categories of people:
a person who was the spouse or domestic partner of the deceased at the time of the deceased's death;
a child of the deceased, including a child adopted by the deceased who, at the time of the deceased's death, was—
a stepchild of the deceased who, at the time of the deceased's death, was—
(i) under the age of 18 years; or
(ii) a full-time student aged between 18 years and 25 years; or
(iii) a stepchild with a disability;
a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased's death, was—
(i) under the age of 18 years; or
(ii) a full-time student aged between 18 years and 25 years; or
(iii) a child with a disability;
a former spouse or former domestic partner of the deceased if the person, at the time of the deceased's death—
(i) would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and
(ii) has either—
(A) not taken those proceedings; or
(B) commenced but not finalised those proceedings; and
(iii) is now prevented from taking or finalising those proceedings because of the death of the deceased;
a child or stepchild of the deceased not referred to in paragraph (b) or (c);
a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);
a registered caring partner of the deceased;
a grandchild of the deceased;
a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased's death;
a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.
Time Limits to Make a Claim
There are strict time limits for making a family provision claim and there are different time limits that apply to different jurisdictions. If you are considering making a claim you should consider seeking legal advice from a lawyer as soon as possible. For example, in NSW a claim must be made within 12 months from the date of death of the deceased. In Victoria, South Australia, Western Australia, and the ACT, a claim must be made within 6 months from the date which probate or letters of administration have been granted to the executor(s) of an estate. In Queensland, a claim must be made within 9 months from the date of death. In the Northern Territory, a claim must be made within a year of the date of the Grant of probate or equivalent. The Court has the power to permit and hear out-of-time applications if there are good reasons for doing so. Some of the factors the Court may consider when deciding whether or not to allow an out-of-time application include:
The length of the delay;
The reason/s for the delay;
Whether the distribution of the estate has occurred or not; and
The circumstances of the applicant
In the case of Morgan & Black [2023] a daughter of the deceased made an out-of-time family provision claim approximately 3 and a half years out of time. The applicant's late father left her a share of his realty which he owned as joint tenants with his de facto partner. Realty can be owned as tenants in common (where each person owns a certain percentage of the property and "survivorship" does not apply) or as joint tenants where, upon the passing of one of the owners, their share automatically vests to the other owner. This property was owned by the applicant's late father and his partner as joint tenants and so upon the passing of the applicant's late father his share vested to his partner (pursuant to survivorship) and the gift to his daughter in his will was not valid. The Court dismissed the application on the basis that it was made out of time and also because there was no reality to claim.
Disclaimer
The content of this blog is not legal advice, this blog only contains legal information, which can become outdated and which is not tailored to your unique circumstances. We strongly suggest that all of our mediation clients seek legal advice before attending mediation. Legal advice will enable participants to make legally informed decisions on the day.
If you have questions or if you seek further information or advice, consider obtaining advice from an appropriate solicitor as soon as possible. Reach out if you would like a referral.
By Katherine Guilfoyle
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