Who Pays For A Family Provision Claim and What Is It?
Family provision claims are claims made by a person against a deceased Estate where they have not been included in the deceased’s Will or when they believe they should have received a greater share of the deceased’s Estate.
A family provision claim can only be made by people who are considered ‘Eligible Persons’ under the Succession Act. Eligible persons include spouses and de facto partners, ex-spouses and de facto partners, children, grandchildren (in certain circumstances) as well as other people who may have been partly or wholly dependent on the deceased.
In order to be successful, in a family provision claim, an eligible person must prove to the Court that the deceased did not make adequate provision for their proper maintenance, education and advancement in life.
Generally, the costs of a family provision claim are paid by the Estate of the deceased. Particularly in circumstances where the Court considers that the Estate, (acting through its Executors) should have accepted the family provision claim before the matter proceeded to a Court Hearing. This includes circumstances where the Court believes that the eligible person had a strong case that they had not been adequately provided for by the deceased. This supports the aim of the Succession Act to encourage settlement of family provision claims, by mediation before they proceed to a Court Hearing.
Once a family provision claim proceeds to a Court Hearing the Court has a discretion to make an order for the costs of the eligible person to be paid out of the deceased Estate or in any other manner that the Court thinks fit.
If you believe that you have been unfairly left out of a Will or have received a lesser inheritance than you believe is appropriate you need to seek legal advice on whether you are an eligible person to make a family provision claim. Part of this advice includes consideration of the strength of your claim to be successful, in order to minimise any potential costs exposure.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on making a family provision claim. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice call The Northern Beaches Lawyer today for an appointment close to home.
Call today on 9221 0341 or email firstname.lastname@example.org
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