Making a claim on an Estate

Do you consider you have not received a fair share of a close family member’s estate and would like to make a claim on an Estate?

The Family Provision Act provides, if adequate provision for proper maintenance, support, education or advancement in life has not been made for a person entitled to make a claim under the Act, the Court may, in its discretion, on application being made by or on behalf of any such person, order, that such provision as the Court thinks fit to be made out of the Estate of the deceased for that purpose.

There are also other grounds on which a claim can be made against an Estate.

Do I need a lawyer to apply for a share or increased share of an estate?

It is a difficult and is a time consuming process, Formbys can;

• advise if you have the legal and factual basis for such a claim;
• prepare the documents for the application to the Supreme Court. This will save valuable time and stress in what may already be a difficult situation.

How long do I have to make a claim on an Estate?

An application to the Supreme Court must be made (filed) within six months of probate or letters of administration of the estate being granted by the Court.

While there is provision in the Act to apply for an extension of time to make a claim, it should not be relied upon as the time limits are designed to ensure action is taken promptly so parties involved can move on with their affairs.

What will I need to provide to Formbys to get advice?

We will need;

• Details of your relationship to the deceased
• An outline of your financial circumstance
• Why you believe you are entitled to a share or a larger share of the property/Estate
• Why you believe the will (or if there is no will, the law) does not provide sufficiently for you.

(If the application is for a child, this information must relate to the child)

Who may apply?

To apply to the Supreme Court of WA for provision to be made you must be one of the following:

• a person who was married to or living as the de facto partner of, the deceased person immediately before the death of the deceased person;
• a person who at the date of death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased whether pursuant to an order of any court, or to an agreement or otherwise;
• a child of the deceased living at the date of death of the deceased, or born within 10 months after the deceased’s death;
• a grandchild of the deceased
  (i) who was being maintained wholly or partly by the deceased immediately before
  the deceased’s death; or(ii) who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or(iii) who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased;

• a step child of the deceased who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the deceased’s death;
• a stepchild of the deceased, if –
• the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
• the value of that property, at the time of the parent’s death, is greater than the prescribed amount;
• a parent of the deceased, whether the relationship is determined through legal marriage or otherwise, where the relationship was admitted by the deceased being of full age or established in the lifetime of the deceased.

Western Australian law recognises:

• same-sex de facto relationships
• de facto relationships where either of the parties are married to someone else or in another de facto relationship.

In certain circumstances the definition of “parent” includes the same sex partner in a de facto relationship.

What will the court consider?

The court will take a number of things into account, including:

• how any change to the provisions made by the Will, will affect other people provided for by the Will
• the sort of property involved and its value
• the ages of the other dependants
• the relationship to the deceased to other dependants
• the needs of other dependants and your needs
• the way you acted towards the deceased and your relationship in general.

It is for the court to decide whether or not it will make an order. Applications are not always granted, sometimes they may be refused.

To discuss your application under the Family Provision Act 1972 (WA) or any other Estate matters contact Formbys today on  08 9354 0300 or email Harry Formby.