A Will is a legal document which embodies the testamentary wishes of the deceased identifying those persons whom they wish to benefit from their Estate and in what proportion. Invariably the beneficiaries of an Estate are family members. On occasion however a family member or other closely related person may be excluded from the terms of a Will. The Succession Act empowers the Court to interfere with the wishes of the deceased if they form the view that the deceased should have made provision for such a person. This is known as a Family Provision Claim.

A person has one year from the date of death to bring a Family Provision Claim, otherwise, such a person would be considered out of time and would thereafter require the leave of the Court to proceed.

On the hearing of such a claim the Court will make three separate enquiries and provided that the first two of these enquiries are answered affirmatively, then provision will be awarded to the Claimant from the Estate.

The first enquiry is to determine whether or not the Claimant is an eligible person. The second enquiry pertains to whether the Claimant has been left without adequate provision for his or her proper maintenance, education and advancement in life and thirdly, what provisions should be made.

Eligible Person

The Act defines who is an eligible person. It includes:

  1. The wife or husband of the Deceased at the time of their death
  2. A person with whom the Deceased was living in a de facto relationship the time of their death.
  3. A child of the Deceased or a child for whom the Deceased had parental responsibility for.
  4. A former spouse
  5. A person who was dependent upon the Deceased or a grandchild of the Deceased who was at the time of death or any other time a member of the household of the Deceased.
  6. A person living in a close and personal relationship with the Deceased at the time of their death.

 

Adequate Provision

Once eligibility has been established the Court will consider whether adequate provision has been made for the Claimant in the Will. In addressing this enquiry the Court considers a number of factors such as the nature and duration of the Claimant’s relationship with the Deceased, the Claimant’s means and needs, any financial or non-financial domestic or caring contributions made by the Claimant, the size of the Estate, the obligations of the Deceased towards the Claimant or beneficiaries, the age of the Claimant, the character and conduct of the Claimant before and after the death of the Deceased and any other matter considered relevant by the court.

Entitlement

If the Court’s enquiry is answered affirmatively to the enquiries referred to above the Court will then consider what provision should be made for the Claimant. Generally a successful Claimant will also have their legal costs paid from the Estate in addition to any provision that is made in their favour. The costs however of the Executor are also paid from the Estate so the costs of such proceedings can serve to diminish the value of the Estate that would otherwise be available for distribution.

It is always advisable that the parties try and resolve a Family Provision Claim through mediation or negotiation in an effort to save legal costs.

Brydens Lawyers are the experts in the prosecution of Family Provision Claims. To determine whether you may have any rights under a Family Provision Claim to benefit from the Estate of a family member or person with whom you have had a close and personal relationship then contact Brydens Lawyers without delay.

Start a claim