Where a person disappears and has not been heard from for a period of 7 years by their friends, family or colleagues, they may be presumed dead. If the presumption of death applies, and the person has left property behind, the Court may distribute their estate according to their will or the rules of intestacy, and deal with any family provision claims accordingly.
A family provision claim proceeds on the basis that the deceased's will is valid. So what are the formal requirements for a valid will, and what happens if they are not complied with?
A Family Provision Application must be made within 12 months of the deceased’s death. The court will only allow an application to be made out of time if there is sufficient cause. The question then arises: what factors are needed to prove sufficient cause?
Under the Succession Act, a person may waive their right to bring a family provision claim against a deceased person's estate. However, any such waiver will only be legally binding if the court approves it.
Under s 57(1)(c) of the Succession Act, a Child of the Deceased is Eligible to Contest their Parent's Will. Generally, whether or not a Family Provision Applicant is a Child of the Deceased is self-evident. However, shifting family structures and the rise of blended families raise several questions about who is a Child of the Deceased for the Purposes of Family Provision.
To demonstrate financial need and enable to court to determine the provision which the applicant should have received, the applicant must provide full and frank disclosure of their financial affairs.
An unsuccessful party may be required to pay both their own costs and the other side’s costs, if they unreasonably refused an offer which was better than the outcome of the case.
A prenup, or a Binding Financial Agreement (BFA) as they are known in Australia, will usually include a clause providing that either or both parties give up their right to make a family provision claim. But do these clauses actually prevent your partner, or former partner, from claiming family provision?
A testator may leave their estate to whomever they wish, including to any charitable organisations. However, where an estate is left to a charity instead of family members, it is often contested under the family provision regime.