Under the Succession Act a person who meets the definition of "eligible person" can make a claim against an estate if the court is satisfied that the eligible person has not been adequately provided for in the will of the deceased person. The claim must be commenced within one year of death.
You are an eligible person if you are the deceased's:
(a) spouse or former spouse;
(b) de facto partner, or
(c) child (including an adopted child).
You may also be an eligible person if:
(a) you were at some time wholly or partly dependent on the deceased; or
(b) you had a close personal relationship with the deceased.
If you think you may be an eligible person under one of these paragraphs, please contact
for more information.
We have been able to help many clients make a family provision claim. We have also helped executors defend claims. Below are two examples of how we have helped applicants in recent times:
Family Provision Complications
1. Between Husband and Wife
When a husband and wife separate and then reconcile, their actions during the period of separation can have a lasting impact on their estate.
We acted for a husband whose wife had changed her Will during a period of separation, leaving him nothing. The husband and wife reconciled and lived together for many years until her death. However, she had not drafted a new Will.
Upon the wife’s death, her husband needed to make a family provision claim under the Succession Act in order to receive a share in her estate. Even though the adult children did not oppose their father’s claim, he had to go to Court because of the opposition of a well known charitable beneficiary.
This matter demonstrates the need for keeping your Will up to date and to make sure that your CURRENT wishes are perfectly clear.
2. Between mother and children ...
A mother died leaving three adult children. In her Will she left all of her estate to her adult brother, leaving nothing at all to her children.
We were asked to help the children make a family provision claim on their mother’s estate.
The law encourages parents to provide for their children. This is so despite the state of the relationship between parent and child (e.g. estrangement). Accordingly, we were successful in having the Will rewritten to provide for the children. A professionally drafted Will which takes into account your family circumstances is essential to reduce the chance of a successful claim being made on your estate.