Who can make a claim against your estate? What needs to be
established by the applicant? What will the court consider? These
important questions along with proactive strategies to help protect
your estate are covered by estate planning partner Angela Harvey
and solicitor Phillip Briffa.
WHO CAN MAKE A CLAIM?
Chapter 3 of the Succession Act 2006 (Act) empowers
certain persons, to make a claim against your estate where adequate
provision is not made for them under your will.
The Act empowers the following classes of people to make a
family provision claim:
The applicant will need to establish that the provision made
under the deceased's Will, if anything, was inadequate for the
applicant's proper maintenance, education and advancement in
WHAT WILL THE COURT CONSIDER?
In Singer v Berghouse the High Court ruled that a
two-stage process is required to assess a claim
for provision under family provision legislation.
The first stage considers whether the provision made, if at all,
was inadequate having regard to, amongst other things; the
financial position of the applicant, the nature and size of the
deceased's estate, the totality of the relationship between the
applicant and the deceased, and the strength of the applicant's
claim when compared with other competing claims against the estate
of the deceased.
The second stage is only considered if the Court forms the opinion
at stage one that the provision was inadequate. The second stage
requires the Court to decide what provision will
be made out of the deceased's estate for the applicant. This
stage involves the exercise of discretion by the Court.
For example, there are circumstances where the Court will refuse
to make an order (at stage 2) notwithstanding that the applicant
was found to have been left without adequate provision for proper
maintenance (at stage 1). Take for example the situation where
there are no assets from which an order can reasonably be made or
where making an order could disturb the testator's arrangements
to pay creditors.
TIME LIMIT FOR CLAIMS
An applicant has 12 months from the date of death of the
deceased to make a claim against the deceased's estate. The
Court may grant an extension of time where a 'sufficient
cause' is shown.
BE PROACTIVE - STRATEGIES TO HELP PROTECT YOUR ESTATE
Having your Will drafted by a skilled lawyer trained in the area
of Wills and Estates can help minimise the chances of a claim being
made against your estate. We have been seeing more and more family
provision matters coming through our doors at Swaab, and in most
cases, the Wills are almost always prepared by people themselves,
without the assistance of a solicitor, using Will Kits or other
basic documents. No solicitor will be able to prevent a claim
altogether (unless a specific Court ordered release is obtained
before death), but there is a lot that we can do to minimise the
risk, and to ensure that our clients understand the risks, having
regard to their own personal circumstances.
There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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