In New South Wales, Victoria and Queensland, people who believe that they were not properly provided for in the Will of a deceased, are able to make a family provision claim on the Estate if they are eligible persons.
In New South Wales, family provisions claims are made under the Succession Act 2006, in Victoria it is the Administration and Probate Act 1958 and in Queensland it is the Succession Act 1981.
Despite the legislation having the same intention there are differences in the definition of an “eligible person” in New South Wales, Victoria and Queensland.
Who is an eligible person in New South Wales?
In New South Wales a person is eligible to make a family provision claim on an Estate if:
- They were the wife or husband of the deceased at the time of the deceased’s death;
- They were living in a de facto relationship with the deceased at the time of the deceased’s death;
- They were a child of the deceased;
- They were a former wife or husband of the deceased;
- They were, at any particular time:
- wholly or partly dependent on the deceased; and
(ii) were a grandchild of the deceased, or were, at that particular time or at any other time, a member of the household of which the deceased was a member.
- They were living in a close personal relationship with the deceased at the time of the deceased’s death.
Who is an eligible person in Victoria?
In Victoria a person will be an eligible person if it is shown that the deceased had a responsibility to make provision for the proper maintenance and support of the person.
Who is an eligible person in Queensland?
In Queensland a person will be an eligible person if it is shown that adequate provision was not made from the Estate of the deceased for the proper maintenance and support of the deceased’s spouse, child or dependant.
Family Provision Claims by children and spouses
In New South Wales, Victoria and Queensland children and spouses of the deceased have an automatic right to make a family provision claim on the Estate of the deceased.
Family Provision Claims by Second Wives
A “Second Wife” refers to the situation whereby the deceased was separated (not divorced) from their spouse and began living in a de facto relationship with another person. In these cases the Court is required to firstly decide whether the de facto spouse is an eligible person to make a claim and secondly, decide between the competing claims of the spouse and the de facto spouse.
In deciding whether the de facto spouse is an eligible person the Court will consider the following elements of the relationship between the deceased and their de facto partner:
- The length of the relationship;
- The nature of the relationship;
- Whether there was a sexual relationship;
- The intermingling of finances;
- The future intention of the parties;
- The outward appearance of the relationship to friends and the community;
- Any inter-reliance between the parties; and
- The sharing of domestic duties and assets.
In the event that the de facto relationship terminated prior to the death of the deceased they may still be classed as an eligible person being someone who was wholly or partly dependent on the deceased.
Family Provision Claims by members of the deceased’s household
Members of the deceased’s household who were dependent on the deceased at some time during their life are eligible to make a family provision claim.
Family Provision Claims and step-children
In New South Wales step children can only make a claim on the Estate of their step-parent if they resided with them and can show that they were dependant on them at some time during their lives.
In Queensland if the parent and step-parent were still married at the time of the step-parents death then the step-child is deemed to be a child of the deceased step-parent and can automatically make a claim on the Estate.
In Victoria a step-child who wishes to make a family provision claim only needs to show that their step-parent owed them a duty and an obligation. For instance, such a duty will arise where the step-parent’s Estate was partially made up of the Estate of the step-child’s parent.
Family Provision Claims and grandchildren
In New South Wales and Victoria a grandchild must prove there was some sort of dependence upon the grandparent in order to be eligible to make a family provision claim.
In Queensland a grandchild must show that they were living with the grandparent and dependent on the grandparent at the time of death.
Family Provision Claims and Close Personal Relationships
In New South Wales and Victoria people in a close personal relationship with the deceased may be eligible to make a family provision claim including people who have lived with the deceased and spent time looking after the deceased.
In Queensland people in a close personal relationship with the deceased are not covered by similar legislation.
If you have been left out of a Will you need to speak to a legal specialist practicing in this area to determine whether you are an eligible person to make a family provision claim.
Contact GMP Contesting a Will Lawyers to book a free first consultation. At the first consultation we will discuss with you in a professional friendly manner the details of your situation and advise you if and how you should proceed.
