What is a Family Provision Application?
Family Provision Applications are applications to the Supreme Court which can only be made by a very limited group of people who believe that a willmaker did not make proper provision for them in their will.
If there are issues with the validity of the will but an application for probate has already been made by the personal representative, please refer to our publication ‘Probate Caveats’ for more information about how the grant of probate could be temporarily halted.
Who is ‘eligible’ to make a claim?
Only the spouse, child or dependent of the willmaker is entitled to make Family Provision Applications. Applicants must be able to prove that no ‘adequate provision’ was made for their ‘proper maintenance and support’ under the deceased’s will.
In determining what is ‘adequate’ or ‘proper’ the court will take many factors into consideration including:
- The nature of the relationship between the applicant and the deceased;
- Whether the deceased person was in any way obligated to or responsible for the applicant;
- Whether the deceased provided financial maintenance, support or assistance to the applicant;
- The applicant’s current and future financial circumstances and needs;
- The applicant’s age;
- Whether the applicant is financially supported by someone else;
- Whether the applicant has any physical, intellectual or mental disabilities;
- Contributions the applicant made to increase the value of the deceased’s estate;
- The applicant’s character and if the applicant had engaged in disentitling conduct; and
- Any other matters considered to be relevant by the court.
An applicant has 6 months from the deceased’s date of death to notify the personal representatives of the estate of their intention to apply. The actual court proceedings must be started within 9 months of the date of death.
For further information about your rights in relation to a deceased’s estate or to find out appropriate steps in your specific circumstances, please contact us.