Who can make a claim against a deceased estate?

In Australia, the law recognises that a will maker may sometimes fail to make adequate provision for close family or dependants. In that situation, certain people can ask the Supreme Court for a share, or a larger share, of the deceased’s estate. This is usually called a family provision claim or a claim against a deceased estate.

Although each state and territory has its own Act, they all broadly follow the same idea:
» You must be an eligible person, and
» You must show that you’ve been left without adequate provision for your proper maintenance and support.

Who is generally allowed to claim?

The exact list differs slightly by state, but across Australia the following categories are commonly eligible:

1. Spouses and de facto partners

» A husband or wife at the time of death.

» A de facto partner who was living with the deceased in a genuine domestic relationship.

2. Children

» Biological and adopted children are generally eligible in every jurisdiction.

» Step-children may be eligible in some states either directly (for example in Victoria and Western Australia) or where they were financially dependent or part of the deceased’s household.

Across Australia, courts generally look at similar factors, such as:

» The nature and length of your relationship with the deceased

» Any obligations or responsibilities the deceased had towards you (compared with other beneficiaries)

» The size and nature of the estate

» Your financial position, health, age and future needs

» Any significant contributions you made to the deceased or their property

» Any gifts or support you already received during the deceased’s lifetime

» Any serious misconduct or long-term estrangement, in appropriate cases.

Judges often talk about “what a wise and just” person, or what the “community” would generally regard as fair in the circumstances would have done, without simply rewriting the will from scratch.

Time limits and next steps

Time limits to make a family provision claim are strict and vary by state. The Court will only extend time beyond these time limits in limited situations. If you think you may have a claim, it is generally sensible to get prompt advice from a wills and estates lawyer.

Important: The information contained in this post / article is not advice. Readers should not act solely on the basis of material contained in this post. Items herein are general comments only and do not constitute or convey advice per se. We recommend that our formal advice be sought before acting on anything contained in this post.