By Teejae Keeble
Dealing with the complexities of inheritance and estate claims can be challenging. When someone dies, their Will might not provide for all family members or close relationships.
Eligible persons can apply to the Court for a share of the deceased estate by making a Family Provision application.
If you’ve been excluded from a Will or believe you’re entitled to a larger share of an estate, it’s crucial to determine if you qualify as an ‘eligible person’ to make a claim.
In NSW, Section 57 of the Succession Act sets out who can make a claim on an estate. The criteria for eligibility is broader than you might think. Under Section 57, you are an “eligible person” if you fall into one of the following categories.
Spouse or De Facto Partner: If you were married to or in a de facto relationship with the deceased at the time of their death, you’re eligible to make a claim. This includes both legally married spouses and partners living under the same roof in a recognized de facto relationship. A ‘de facto relationship’ is when two people live together as a couple, without being married, where the couple shares a genuine domestic relationship and household.
Children: This includes biological or adopted of the deceased. Stepchildren are also potential claimants (see below).
Former Spouses: Ex-spouses of the deceased can make a claim, even if they have remarried or re-partnered. However, in Lodin v Lodin, the High Court denied such a claim, finding that the deceased had no obligation to provide for the ex-spouse under the circumstances. This decision demonstrates that while an ex-spouse is eligible to claim, they are not automatically considered a natural consideration of the person making the Will. The former spouse must present factors supporting the application, such as any existing obligations like child support, and the Court has discretion to consider all relevant circumstances.
Close Personal Relationship: a person who was in a close personal relationship with the deceased and living with them at the time of their death may have a claim.
Grandchildren and other dependants: a grandchild of the deceased person or a person who was wholly or partly dependent on the deceased and who lived with the deceased under their roof for some time may have a claim. Occasional gifts or assistance by the deceased does not establish the necessary level of dependency.
Time Limits for Claims:
Time is of the essence. If you are considering making a claim, it is essential that you seek legal advice and make your claim within 12 months from the date of the deceased’s death. This deadline is strict, and extensions are rarely granted, so it’s crucial to act promptly.
Conclusion:
Making a claim on an estate can be a complex process. The first step is understanding who qualifies as an eligible person to make a claim. Seeking expert legal advice will help ensure that your claim is handled correctly and increase your chances of a successful outcome.
If you believe you fall into one of the above categories and are an eligible person, have any questions or need legal advice, feel free to contact our team on 02 4222 2666 or email us at hansons@hansonslawyers.com.au.
If you are the executor of an estate and you have been threatened with or face such a claim, it is important that you get advice about your obligations in defending and possibly settling that claim. We can also help with such advice and representation.
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