After someone dies, it is natural to wonder what will happen to that person’s property. It is also common for family members to feel that they have unfairly missed out on an inheritance or will receive less than they anticipated.
If you believe you have not been left with adequate provision from the estate of a deceased family member, you may be eligible to make a family provision claim. Alternatively, you may be the executor or beneficiary of an estate in which someone else is pursuing such a claim.
This article addresses key questions about family provision claims in Western Australia. The information is general only and seeking legal advice tailored to your circumstances is crucial.
Who is Eligible to Make a Family Provision Claim in WA?
Under the Family Provision Act 1972, those who may be eligible to make a claim include:
- a current spouse or de facto partner of the deceased
- a former spouse or de facto partner of the deceased, if at the date of the deceased’s death, they were receiving or entitled to receive maintenance
- a child of the deceased
- a stepchild or grandchild of the deceased in specified circumstances
- a parent of the deceased
Are There Time Limits to Make a Family Provision Claim in WA?
Yes, strict time limits apply. Generally, a claim must be made within six months of the date of the Grant of Probate or Letters of Administration. If you wish to make a claim, you should act quickly and seek legal advice to avoid missing this deadline. In some cases, the Court may grant an extension, but this is not guaranteed.
Can a Family Provision Claim be made if there is no Will?
Yes, when someone dies without a Will they are said to die ‘intestate’ and in Western Australia, the Administration Act 1903 dictates how the deceased assets are distributed. Generally, intestacy laws favour spouses, children, and other close relatives, however, the rules are complex. Whether or not a person inherits under the estate depends on the circumstances including their relationship with the deceased, the estate’s value, and the relationship of other surviving family members of the deceased.
An eligible person may bring a family provision claim if the proposed distribution under intestacy laws does not adequately provide for them.
Will I Have to Go to Court for a Family Provision Claim in WA?
While Court proceedings are sometimes necessary, many family provision claims are resolved through negotiation or mediation. An executor in charge of a deceased estate is authorised to reach an agreement regarding a family provision claim made against it, and, in doing so, should seek legal guidance.
Alternative dispute resolution methods such as mediation typically offer a far more efficient and cost-effective means of resolving disputes than going to Court. Informal negotiations usually allow parties to reach mutually agreeable outcomes without protracted litigation. However, if a resolution cannot be reached through negotiation, court proceedings in the Supreme Court of Western Australia may be necessary to determine the matter. Court proceedings are often complex, expensive, and protracted, so in most cases, all parties will strive to avoid this outcome.
What Does a Court Consider When Determining a Family Provision Claim in WA?
The Court may adjust the terms of a Will or the proposed distribution of an intestate estate if it does not make ”adequate provision” for the “proper maintenance, support, education or advancement in life” needs of an eligible applicant. Each case is different and must be assessed on its merits and the surrounding circumstances. The Court considers various factors, including:
- The nature of the relationship between the applicant and the deceased
- Whether there was a duty or obligation for the deceased to provide for the applicant
- The applicant’s financial needs and resources
- The financial needs of other beneficiaries
- The size and nature of the deceased’s estate
- Any contributions the applicant made to the deceased’s welfare
How Much Will It Cost to Make a Family Provision Claim in WA?
The costs of making or defending a family provision claim can vary depending on the circumstances, the complexity of the case and whether the matter proceeds to court. It is important to discuss fees and potential costs with your lawyer upfront. If the matter proceeds to litigation, the Court has discretion regarding how costs will be awarded. If an applicant is successful, (at least a portion of) their legal claim will ordinarily be paid from the estate.
How Long Will a Family Provision Claim Take in WA?
The timeframe for resolving a family provision claim can vary. Some claims are resolved within a few months, while others, especially those requiring court proceedings, can take longer. In most cases, everyone involved in the estate is motivated to resolve the case in a timely manner. Seeking early legal advice from an experienced estate lawyer can help expedite the process and increase your chances of a favourable outcome.
Conclusion
This is general information only and you should obtain professional advice relevant to your circumstances. Laws regarding family provision claims can be complex and the families involved are usually also dealing with emotional and other challenges. Whether you are making or defending a family provision claim, it is important to consult with a lawyer specialising in estate law to discuss your specific circumstances and receive personalised advice.
If you or someone you know wants more information or needs help or advice, please call (08) 9758 8073 or email [email protected].