Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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What is the executor’s role in relation to a family provision claim?
- The executor (or administrator if appointed by the court) acts for the estate and they are responsible for upholding the testator’s testamentary intentions but at the same time they must act reasonably, honestly and fairly (in good faith) in relation to a family provision claim.
- As an executor you are required to assist the court by providing all relevant information and material to help the court to make a decision about whether or not to make an order in favour of the person making the claim.
- Where possible the executor or administrator will be required to communicate with the claimant and negotiate a settlement.
- If a settlement is not possible then the executor or administrator must represent the estate and beneficiaries during court proceedings.
- Their ultimate job is to maintain the value of the estate for the benefit of all beneficiaries. This will potentially include the claimant.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you are an executor and you think you may need legal advice.
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Where is a family provision claim made?
- The Supreme Court in each state and territory has the power to hear and decide matters relating to family provision claims.
- Court rules, legislation and regulations prescribe the types of documents to be used and the procedure for claims.
- Initiating documents (the legal documents that start the claim) must be filed in the court’s registry and served on the executor of the estate.
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Who can make a family provision claim?
- Entitlement to make a family provision claim is based on the relationship the person making the claim had with the deceased person.
- Generally speaking if the deceased person was a parent or a spouse or de-facto partner at the date of their death their child or partner will be eligible to make a family provision claim.
- However this is no guarantee that they will be awarded provision from the estate.
- The court must examine all the circumstances before it will decide whether to award provision to the claimant.
- These circumstances include:
- the size of the estate;
- the other beneficiaries and their need for provision;
- the relationship between the claimant and deceased; and
- the claimant’s need for provision.
- If you are thinking about making a family provision claim you can use our Fixed Fee Quote service to call for tenders from experienced lawyers who may be able to assist you with this.
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What happens when a person passes away with a will?
- The person named in the deceased person’s will as the executor should make an application to the Supreme Court for a grant of probate.
- This is an official Supreme Court document that gives the executor the authority to deal with and distribute the deceased’s assets according to the terms of their will.
- The executor must be mindful of any claims on the estate that may ultimately affect distribution of the assets.
- You can find more information about probate applications in our Wills & Estates topic.
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How long after the death of the testator must a family provision claim be made?
- Each state and territory has different rules and different time limits.
- For some the clock starts ticking from the date of death while for others the clock starts from the date administration is granted.
- For example NSW allows up to 12 months from the date of death while Tasmania allows up to 3 months from the date administration is granted.
- You need to check the relevant legislation in your state or territory to find out the prescribed time limit that applies to you.
- Courts generally only grant extensions to time limits in extraordinary circumstances.
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Is a de facto partner treated the same way as a spouse for family provision?
- Yes. De facto partners are treated the same way as a spouse for the purpose of a family provision claim.
- However the relevant legislation in your state or territory should be checked to ensure that the relationship in question actually qualifies as a ‘de facto relationship.’
- The court may consider a range of factors such as:
- the relationship’s duration;
- the nature and extent of the relationship;
- financial dependence;
- property ownership; and
- mutual commitment.
- You can use our free and anonymous Ask a Lawyer service if you have a particular issue you want to know more about.
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What is court annexed mediation?
- Court annexed mediation is mediation that is ordered by the court.
- Where possible the court requires the parties to attend mediation in an attempt to negotiate a settlement agreement.
- If the parties settle the claim it means that the matter will not need to be heard before the court.
- This is a substantial cost and time saving for everyone involved.
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What are consent orders?
- Consent orders are court orders that are written because of an agreement reached between the parties.
- They are then given to the court for approval.
- They differ from court orders because they are consented to by the parties.
- Court orders are made by the court after a court hearing.
- Both consent orders (from a settlement agreement) and court orders (from a decision) are legally binding on the parties.
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Where does the money come from if a family provision claim is successful?
- Any provision awarded to the claimant must come from the estate assets.
- The court may prescribe which part of the estate is to bear the burden of the provision.
- For example the court may order that the provision for the claimant be paid from the testator’s bank accounts or that a particular property must be sold to provide the requisition funds.
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If a family provision application is successful do all the beneficiaries named in the will just get less?
- This depends on the court’s decision or the agreement made by the parties.
- For example if the claimant is added as another beneficiary but the court does not prescribe where the money is to come from then this will have the effect of diluting each residuary beneficiary’s portion given to them in the will.
- If the court orders that a particular asset is to pay for the claimant’s portion then the beneficiary who was to receive that gift under the will must either miss out or receive less.
- The court will take the impact of this into consideration when making its decision.
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