Family Provision
3. Eligibility to Make a Claim
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 23 Jul 2015
- Any kind of litigation is costly for all parties involved so litigation should generally be avoided if possible. Before even considering whether to make a family provision claim against a deceased person’s estate you must first determine:
- if you are eligible to make a claim from the estate; and
- if you have a genuine need for provision.
- Your eligibility depends on:
- your relationship to the deceased person and any factors warranting the making of a family provision order;
- the extent to which the deceased person had an obligation to provide for you; and
- what provision if any was made for you by the deceased in their will.
- The legislation is state and territory specific but generally the following people are eligible to make a family provision claim:
- the spouse or de facto partner of the deceased at the date of death; and
- a child of the deceased.
- In certain circumstances and depending on the state or territory non-immediate family members may be eligible including:
- a former spouse of the deceased;
- a person who lived with the deceased and was dependent on the deceased at the date of death or at some time such as a step-child or grandchild; and
- a person that the deceased was living with in a close personal relationship.
- The next stage is to determine the grounds for making a claim. In very general terms the court will only make a family provision order if it is satisfied that adequate provision has not been made for the proper maintenance, education and advancement in life of the eligible person.
- In considering this the court has very wide discretion to consider all the circumstances of the claim including but not limited to:
- the respective financial position of all those who are entitled to benefit from the estate;
- the need and moral claim of the person making the claim;
- the ages of those who will benefit from the estate;
- the need for the proper education of those who are entitled to benefit;
- health and medical requirements of any beneficiaries; and
- the degree to which the deceased person has already provided for anyone entitled to benefit from the estate.
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