A Family Provision Claim is a legal application to challenge a Will, which usually must be made within 12 months of the person's death. Normally, this type of claim is made by an eligible person seeking a greater share of the deceased person's estate. Eligible persons include a spouse, de facto partner, child or dependent of the deceased.
A family provision claim is intended to compensate people who were financially dependent on the deceased or who were otherwise unable to maintain themselves, pursue their education, or advance in life.
In order to contest a Will in Australia, you must first ascertain your legal eligibility. If you meet the eligibility requirements, you would normally first negotiate with the Estate's legal representatives or executor of the Will, failing which you may proceed with the filing of a family provision claim.
A step-by-step guidance on how to contest a Will in is provided below:
a) Obtaining a copy of the Will: Obtaining a copy of the Will is normally the first step in contesting a Will. You can do this by getting in touch with the Executor of the Deceased Estate or the solicitor who created the Will.
b) Reviewing the Will: Once you receive a copy of the Will, you would need to carefully go over it to see whether you had been left out or not provided for adequately. This is the stage during which you would normally see an experienced legal practitioner and obtained detailed legal advice as to your rights and available options.
c) Determining your eligibility: You must be an eligible person as specified by the applicable state or territory legislation (in NSW this is Succession Act 2006) in order to lodge a family provision claim. In the majority of states, a deceased individual's spouse, de facto partner, child, or dependent is considered to be an eligible person.
d) Obtaining Legal Advice (If This Was Not Already Done at Part b): Prior to filing a claim for family provision, it is crucial to seek legal advice. You can get legal advice on your eligibility and the likelihood that your claim will be successful. At Surge Legal we are able to help you with the claim's preparation and submission and ensure this is done in a timely and cost-effective manner.
e) Preparing the Claim: You must gather supporting documentation, such as financial records and documentation of your connection to the deceased, prior to filing a family provision claim. You must also prepare an Affidavit describing your claim's justifications, including the reasons why you think your needs haven't been met.
c) Filing the Claim: After completing your claim, you must file it with the appropriate court (in NSW this is the Supreme Court of NSW). States have different deadlines for submitting family provision claims, although they are typically due within a year of the decedent's passing.
d) Serving the Claim: After the claim has been filed, it must be served on the Estate's executor and any other parties who may be considered to be interested parties.
e) Attending Court: The next course of action is to appear at Court if the issue cannot be resolved through further negotiations (from the moment the documents are filed and served and the first Court date). Following some procedural hearings and dispute resolution, the matter will eventually be set down for Hearing, if it cannot be resolved by consent. Each party will then have the chance to submit their cases before the Judge and call witnesses. After that, the court will make a final determination.
f) Appeal: You may have the option to appeal the Court Order if you disagree with the court's ruling. This will rely on the particulars of your situation and if there are any legal grounds for appeal.
It is crucial to remember that family provision claims can be complex and emotionally hard to deal with. There is no assurance that the process will be successful, and it can be expensive and time-consuming. Making a family provision claim, however, may be your best option if you feel that your needs have not been fully met by a Will in order to guarantee that your rights are upheld.
At Surge Legal we assist you with determining your eligibility for a Family Provision Claim, preparing your claim, submitting it, and serving same on other side. We also thoroughly negotiate the matter with the Estate's representatives, failing which, we ensure that the best possible outcome is obtained for you at Court. Our wealth of experience in these matters is greatly enhanced by working with eminent barristers in this area of law, so you can rest assured that your legal rights are always well taken care of.
Call us now on 02 8722 5021 or make your initial free consultation appointment via our Book Online page.