Why would you need a Family Provision Application?
If a person dies, with or without a Will and adequate provision is not made for the deceased person’s spouse, child, or dependent, then a Court may make an order for provision that it thinks appropriate under the circumstances, regardless of the deceased’s instructions.
Family Provision Application Suitability
There are several different aspects to contesting a Will and a claim that inadequate provision has been made is one of those. For you to be eligible to contest a Will based on inadequate provision you need to be a spouse, a child, or a dependant and any application for further provision must be made within 9 months of the date of death.
A spouse can be a husband, a wife, or a de facto. The concept of husband and wife needs no further explanation, but what is a de facto? A de facto is one of two persons who are living together as a couple on a genuine domestic basis for a continuous period of at least two (2) years at the time of the deceased’s death.
How do you know if you are living together on a “genuine domestic basis”? If you live in the same house; and have done so for in excess of 2 years; enjoy a sexual relationship; are financially dependent on each other; own property jointly; raise a child or children together; care and support each other; perform household tasks; and are viewed by friends and family as being in a relationship, then you are living together on a genuine domestic basis and have a de facto partner. It is not crucial that all these characteristics be present, but the more that are the more convincing your claim.
A child includes an adopted child and a stepchild. You are a stepchild if your biological parent married another person and their relationship with the deceased did not end before their death.
A dependent is a person under the age of 18, or a parent of a surviving child of the deceased, or a parent of the deceased, who is receiving substantial financial support by a deceased person prior to their death.
A person contesting a Will must be able to prove to the Court, or the Executor that they should have received more than they did. This is much easier, when a deceased person leaves an eligible person with nothing, but not as easy, if a deceased person leaves an eligible person with less than other eligible persons.
If you contest a Will, your own financial circumstances will be examined as well as the estate assets and liabilities. It would be difficult to justify a claim against an estate holding assets of $300,000, when your personal net financial position is $5,000,000.
If you believe that your spouse or parent/step-parent, has left you with insufficient financial support, please contact us for a free consultation and independent legal advice.