Family Provision Application and Claim

Overview

Have you been excluded from a Will?

Beyond the tragedy of a loved one’s passing, Wills commonly have a way of presenting unexpected challenges — particularly for those who have been improperly accounted for. If you believe you’ve been unfairly left out of a Will, either partially or entirely, filing a Family Provision Claim is a way to seek the provision you may be entitled to.

Contested wills often come with complex and sensitive legal processes. They have the potential to cause collateral damage — particularly familial. Having expert estate lawyers by your side, like our team at GMP Law, can help you to best navigate your claim’s proceedings, working to ensure a fair outcome for all those involved.

Years Experience

winning successful cases for our clients.

98%

SUCCESS RATE

winning Family Provision Claims

35,000

CLAIMS WON

translating to billions of dollars for our clients.

Process

What is a Family Provision Claim?

A family provisions claim is where an ‘eligible person’ may seek to increase their share in a deceased person’s estate. These claims are pursued by both those who have been partially left out of the estate — believing they are due more than their current share — and those who have been left out of the Will entirely.

For a family provision claim to be successful, the claimant must be deemed an ‘eligible person,’ which can be thought of as someone who was dependent on the deceased person in some capacity — whether financially or domestically. Eligible persons may hold one of the following relationships with the deceased:

Spouse — former or present.
Child — whether biological or adopted.
Cohabitant or domestic partner.

In certain circumstances, family members such as grandparents, grandchildren, cousins and others who were in close relationship with the deceased may have legal grounds to be considered an eligible person, and in turn become a beneficiary of the deceased person’s Will. This is provided they can prove their dependency status.

The Family Provision Claim Legal Process

As mentioned, the legal proceedings for family provision claims are complex, sensitive matters, and should be pursued only through careful consideration. A first step that you can take is sitting down for a confidential consultation with an estates lawyer, who can provide you with personalised legal advice.

The time limit for filing a family provision claim differs across Australian states, but generally falls between 6 to 12 months. However, there are uncommon circumstances where the court will allow the claim to move forward beyond the one-year mark, provided that the assets haven’t yet been distributed.

If, upon meeting with an estates lawyer, you decide to move forward with your claim, the legal process may proceed in any of the following ways, depending on the nature of your circumstance:

Mediation: The process of mediation is a private estate disputes pathway wherein a third-party mediator considers the side of all parties and has the legal authority to change the Will’s distribution accordingly.
Litigation: Through litigation, a resolution is sought through the court system. Claimants may progress to litigation either due to preference and/or the advice of their solicitor, or due to being unable to reach a resolution through mediation.

The court process timeline varies case-by-case, but is generally resolved within 18 months — with more complex cases extending longer. Mediation, comparatively, commonly resolves the matter within six months. Notably, mediation is both more cost and time-effective compared to litigation, and in certain circumstances may be compulsory before being provided the option of appearing before the court.

If your case does progress to litigation, the court will weigh various components, including:

Your age, character, financial state, relationship with the deceased person and the degree to which you were dependent on them.
The size of the deceased person’s estate.
The existence of any past claims.
The competing needs of other Will beneficiaries, and how their relationship with the deceased person compares to yours.

In assessing all the relevant factors, the court has the responsibility to uphold the deceased person’s freedom of testation, which refers to the right of all people to decide how their estate is distributed following their passing.

Whether or not you increase your share in the deceased person’s estate — and the degree to which your share increases — ultimately depends on both your relationship with the deceased person and the value of their possessions. For personalised insight on what you may be entitled to, reach out to our team of estate lawyers for a confidential consultation.

A Record Of Success

Gerard Malouf and Partners has an established track record of handling Family Provision Claims with the sensitivity and professionalism they deserve while helping our clients receive the benefits they’re due.

Client Story: Man reunited with his father and gets left off the wills estate

An adult son who had not been provided for by his deceased father was able to successfully contest his father’s will and receive $75,000. While our client had no relationship with his father for the first 20 years of his life, the two had connected later in life after the son was finally able to locate his father. Our client also grew very close with his half-brother, whose existence he discovered when he finally met his father.

Being left out of his father’s will after this long reunification process hurt our client deeply. Our legal experts felt that an injustice had been committed and agreed to help the man on our “no win, no fee” family law basis.

At the request of our client, our team drew up an affidavit with evidence of the relationship between the father and son, as well as information about the son’s current financial state. While the deceased’s estate disputed the amount of compensation that our client should have been eligible for, our team was able to negotiate a large lump sum in an amount that was satisfactory to him and his wife.

Client Story: Inadequate provision from a deceased family member

In another recent case, our legal team was able to help a man who had received a portion of his late mother’s estate but at a rate far lower than satisfactory. The man had spent many years caring for his aging parents and doing renovation work on the family home.

As a result, he was left under the impression that he would inherit the property after his parents’ death. Instead, our client was dismayed to discover that he had only been left with a family provision of 8% of the estate, with the rest going to his two sisters who had contributed less to his parents’ care during their lifetime. Hurt, and looking for options, the man turned to the legal professionals at Gerard Malouf & Partners.

On our client’s behalf, we entered into mediation with the deceased’s estate, who countered that our client had been provided with large sums of money during his parents’ lifetime, and owed the estate approximately $600,000. Through mediation, we were able to extinguish our client’s debt entirely and then earn him a share of the profit from the sale of the home he had worked so hard on for years.

While the process was extremely bitter, we stood by our client and delivered for him as promised. If you require assistance with a Family Provision Claim, reach out to the experts at Gerard Malouf & Partners today.

Contesting Wills

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Our Difficult Case Policy

At Gerard Malouf & Partners, it’s our professional obligation to strive for maximum justice and achievable compensation.

Our difficult case policy ensures that our senior lawyers and experienced management team oversee notably challenging cases. This makes sure that we achieve the best results for our clients seeking accident injury compensation.

We maintain integrity by not accepting a case if we believe it is unlikely to result in compensation, or if the costs to our client outweigh the benefits.

This is our core philosophy and what differentiates us from other law firms.