If so, you may be entitled to make a claim under the Inheritance (Family Provision) Act1972 (“the Act”).
Testator’s family maintenance
When a person draws up a will (called a “testator”), they are entitled to give away their property and assets in any manner they see fit.
However, a person who shares a close, family relationship with the deceased, and who has been left out of the will as a beneficiary, can make an application against the estate if they face undue financial hardship, as part of what used to be called testator’s family maintenance.
The Act gives the Supreme Court the power to award to an eligible claimant part of the deceased’s estate, even though the deceased had left nothing, or very little, to that person in the will. The test applied by the Court is whether the deceased failed to provide adequately for the applicant’s proper maintenance, education or advancement in life.
Inheritance claims can be made even if there is no will
A claim can also be made under this Act with respect to an intestate estate (that is, where there is no will). In these circumstances, it is possible for a claimant to make a claim against the estate for greater provision even though the Administration and Probate Act 1919 says they are only entitled to a fixed share.
Who can claim under the Act
The following persons can make an application to the Court for provision:
- a spouse of the deceased
- a domestic partner of the deceased as declared by the Court under the Family Relationships Act
- a child (natural or adopted) of the deceased
- a child (natural or adopted) of a spouse or domestic partner of the deceased, who was wholly or partly maintained, or was legally entitled to be wholly or partly maintained, by the deceased immediately before her or his death
- a parent, brother or sister of the deceased who satisfies the court that they cared for, or contributed to the maintenance of the deceased during the deceased’s lifetime
- a grandchild of the deceased.
How does the Court decide?
Inheritance claims are very complex and the Court has to balance a number of considerations before it will order greater provision to an eligible claimant. Some of the relevant factors include:
- the size of the estate (for example, the smaller the estate, the less likely that the Court will make substantial redistribution between beneficiaries)
- the age, health and financial circumstances of the claimant (for example, the Court is much more likely to award greater provision to a younger, poorer family member where there are other family members with greater shares who are financially independent)
- the relationship between the applicant and the deceased (for example, the Court is much less likely to give a black sheep child a greater provision out of the estate if that child’s conduct has been disentitling in some way).
Time limits apply
If you feel you are entitled to make a claim under the Act, please be aware that you must make a claim (ie bring Court proceedings) within six months of the grant of Probate or Letters of Administration.
How we can help
If you intend to make a claim, we urge you to contact our office immediately so that a formal notice of your claim can be sent to the executor or administrator of the estate and the beneficiaries of the estate.
We will be able to determine whether your claim can be settled by negotiation, in which case any settlement can be documented in the form of a Deed of Family Arrangement, or whether Court proceedings are necessary within the six month time limit allowed under the Act. The earlier you contact us the better.
- If you are an executor of an estate, we can advise you on what you need to do on behalf of the estate;
- If you are an existing beneficiary of the estate who will be affected by a claim, we can advise you if it is worth defending such a claim or negotiating a settlement.
If you have been left out of a will, and the estate is in Adelaide or elsewhere in South Australia, we can advise you as to your entitlements. Call us on (08) 8237 0559 for a FREE 20 minute telephone consultation or email us your query at firstname.lastname@example.org.