Family provision claim affidavit

1. What is a family provision claim?

A family provision claim is also known as a “claim” or court proceeding for further entitlement from an estate, as “contesting a Will” or as an application for “further and better provision.” These claims or applications are made where an “eligible” person has been left out of a will completely or where they seek a greater share from an estate.

We sometimes receive queries where a client is concerned that their sibling or friend might make a family provision claim, however, only certain applicants as defined within the Succession Act are “eligible”.

“Eligible applicants” include a:

• “Spouse”, defined as including a husband, wife, de facto partner, civil partner and a dependent former spouse. It is possible for someone to have more than one spouse if, for example, they remain married but have entered into a new de facto relationship;
• “Child” which includes stepchildren and adopted children;
• “Dependent” – means a person who was being wholly or substantially maintained or supported by the deceased at the time of their death and who is:
  • A parent of the deceased;
  • A parent of a surviving child under the age of 18 of the deceased person; or
  • A person under the age of 18.
  1. Are there any timeframes to be complied with?

  An applicant must notify the executor in writing within 6 months from date of death of their intention to make bring a family provision claim. They must then file the application in the Court within 9 months from date of death.

  The Court has discretion to allow an application to be held out of time after considering factors such as the reason for delay, whether the estate has been distributed and whether the beneficiaries of the estate would be prejudiced by allowing the application to proceed.

  1. What are the steps that must be taken for a claim?

  When an applicant files an Application for further provision, they must also file an Affidavit which sets out information in support of their case and a draft directions order which sets out a proposed timeline for the steps leading up to a trial of a matter. The executor can either agree with the proposed dates or negotiate dates with the applicant.

  The directions order sets out dates for:

  • The executor to serve material on any person who may be affected by the claim;
  • The filing of a Notice of Address for Service by anyone who wishes to be separately represented;
  • The filing of affidavit material by all parties;
  • A compulsory without prejudice meeting to be held, usually between lawyers to narrow the issues and negotiate a settlement;
  • The parties to attend mediation (this is a compulsory step);
  • The matter to be set down for a trial if the matter does not settle at mediation.
  1. What does the court consider?

  Once eligibility has been confirmed, the court considers the claim on a two-step process:

  1. Whether there has been “adequate provision” for the applicant’s proper maintenance and support;
  2. If so, then what provision, if any, ought to be made out of the estate for the applicant.

  Relevant factors included the value of the estate, the applicant’s financial circumstances and future needs and the competing needs of all beneficiaries.

  The parties may negotiate costs, however, if they are unable to agree and the matter proceeds to a trial then costs are in the court’s discretion. A successful party will usually have some proportion of their legal costs paid by the other party.

  If the applicant is successful, then the estate will usually pay for the applicant’s standard costs. If an applicant is unsuccessful then the Court may order that they pay their own costs, or even that they pay the executor’s costs.

  The Court will consider the size of the estate, any reasonable offers that were made and if a party has failed to comply with the rules or a practice direction of the Court.

  We recommend obtaining legal advice when considering filing an application. We can assess the likely outcome of an application and advise of possible risks at an early stage.

  1. What if I leave them a small gift?

  We are sometimes asked whether a claim can be prevented if a testator leaves someone a small sum of money and we have seen Wills where a beneficiary is left a gift as small as $1 in an attempt to prevent a claim. However, the relevant consideration is not whether an applicant has been left a distribution but whether that distribution is adequate for their needs.