Family Provision Claim

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What is a Family Provision Claim?

A Family Provision Claim (FPA) refers to a claim which a person can make against a deceased estate if they have been left out of a will or have not received sufficient for what is described by the law as their “proper maintenance and support”.

Only persons who are described in the law as “eligible persons” may apply.

Who is classified as an eligible person?

A spouse, child or a dependent of the deceased person are those who can make an FPA.

Spouse includes a husband or wife, de facto partner, a dependent former husband or wife, or civil partner. It is possible the deceased person has more than one spouse. A child of the deceased encompasses natural children, stepchildren and adopted children, while a ‘dependent’ includes any person who was wholly or substantially maintained or supported by the deceased at the time of his or her death and who is:

  • A parent of the deceased; or
  • the parent of a surviving child under the age of 18 years of that deceased person; or
  • a person under the age of 18 years.

How are FPA’s dealt with by the court?

To be successful with a claim, it is not sufficient that the disappointed beneficiary feels hurt about being left out of a will or not being treated as generously as other beneficiaries, nor it is sufficient to point to the will being unfair.

The court will take a broader view of all your financial circumstances in assessing whether provision for you in the will was inadequate. Some of the factors taken into account include:

  • The net value of the estate (after debts, taxation, funeral and other expenses have been deducted);
  • the financial position of the person making the FPA;
  • the age, health and earning capacity of the applicant;
  • the independent means of the applicant because of any gift, transfer or other provision made by the deceased during their life, or from any other source;
  • the closeness of the relationship between the applicant and the deceased;
  • whether the applicant contributed to the deceased’s estate during the latter’s lifetime, or to his or her welfare;
  • the competing claims of any other beneficiaries, including their financial position and circumstances;
  • the character and the conduct of the applicant, which the court may find disentitles them to a share, or a bigger share, of the estate.

Based on these factors, the court will then determine what provision if any ought to be made.

What are the time limits on an FPA?

An applicant must commence the claim by filing the application within nine months of the death and a detailed affidavit in support of their claim.

It is important also, that written notice of the intended application be given to the deceased’s personal representative (the executor or administrator of the estate) within six months of their death. If this notice is not given, the personal representatives are able to distribute the estate without regard to your claim.

Later applications can be made but only if the court grants an extension based on the particular circumstances of the case.

How expert legal professionals can help

There are numerous steps involved in making an FPA, in addition to the time limits imposed by the law. Seeking the guidance of a legal professional with experience in wills and estates is vital in giving an FPA the best chance of success.

Most FPAs settle prior to or at a mediation which the court requires the parties to undertake before the application can proceed to trial. A lawyer well-versed in the FPA process is crucial at this stage.

At South Geldard Lawyers in Rockhampton we have the experience to provide practical advice tailored to your case. If you have questions or concerns regarding making an FPA, contact us today on (07) 4936 9100 or through our website to arrange an appointment.

It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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