Estate challenges and Family Provision claims – Who can be a claimant?
Those who may be able to make a claim against the estate, i.e. under a family provision claim generally are those for who the will maker were responsible for. The most common categories are as follows:
Spouses
It is recognised that the will maker has a primary responsibility to provide for their spouse and hence any spouse of the will maker, whether they are married or de-facto, is entitled to make a claim against your estate.
Children
Children are eligible to claim against a will maker’s estate, with applicants including biological children and adopted children, whether they are minors or adults. Stepchildren are not included in this category but may fall under ‘anybody else’.
Grandchildren
Grandchildren are not automatically eligible to make a claim upon the estate, but in special circumstances, generally being if they were financially dependent on the will maker, may mean that they are eligible to make a claim.
It is not sufficient that the grandchildren were only dependent on the will maker for temporary period such as school holidays or gifts for events such as birthdays, but a continuous living arrangement along with daily essential expenses being met.
Anybody else
Even if an applicant does not fit into any of the above categories, others may still be eligible to make a family provision claim. To do so, they must prove to the Court two main conditions, firstly that they had at some point lived in the same household as the deceased and secondly that they were wholly or partly dependant on the will maker at some point.
It is under this category that those such as step-children and others who may claim a close-personal relationship with the deceased may apply for a family provision claim. A close personal relationship is classified as a relationship between two adult persons, whetherrelated by family, who are living together, one or each of whom provides the other with domestic support and personal care.
More Information
If you wish to obtain further information, advice or assistance in updating your will, or about a will dispute please contact one of our will lawyers in our Estate Planning team at Matthews Folbigg on 9635 7966, email us at estates@matthewsfolbigg.com.au or through the website www.matthewsfolbigg.com.au
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law. Liability limited by a scheme approved under Professional Standards Legislation
