Family provision claims: who can make one and the time limit

Who is an eligible person

Section 57 lists the people who may apply.

1. The person who was the deceased's spouse at the time of death.
2. The person who was the deceased's de facto partner at the time of death.
3. A child of the deceased, including an adopted child.
4. A former spouse.
5. A person who was wholly or partly dependent on the deceased at some time, and who was either a grandchild of the deceased or a member of the deceased's household.
6. A person who was living with the deceased in a close personal relationship at the time of death.

A close personal relationship means two adults living together where one or each gives the other domestic support and personal care. It does not include a marriage or de facto relationship, or care given for payment or for an organisation.

Being an eligible person does not mean a claim will succeed.

The time limit

A claim must generally be made within 12 months of the date of death.

The Court can allow a later claim if the applicant shows sufficient cause.

A late claim must ask the Court for an extension of time.

The time runs from the death, not from the grant of probate.

A claim can be made even where no grant has been made.

What the Court must decide

Being left out of a will, or left less than expected, is not enough.

The Court looks at whether the applicant was left without adequate provision, and what provision should be made.

Matters the Court considers include:

1. The relationship between the applicant and the deceased.
2. The size and nature of the estate.
3. The applicant's financial position, now and in the future.
4. The applicant's age, health and any disability.
5. Any contribution the applicant made to the value of the estate.
6. Any provision the deceased made for the applicant during life or under the will.
7. Other claims on the estate.

Property outside the estate

Some property does not form part of the estate, such as land held as joint tenants or superannuation paid directly to a person.

The Court can designate certain property as notional estate under Part 3.3 of the Succession Act.

This can include property the deceased dealt with in the three years before death, in the circumstances set out in the Act.

A claim can then be met from that property.

The process

1. File a summons and an affidavit in the Supreme Court. A filing fee applies.
2. Claims are referred to mediation.
3. If the claim does not settle, it is listed for a final hearing before the Court.

An applicant who loses may be ordered to pay costs, including the other side's costs.

Common questions