When you lose someone you love, the last thing you want to think about is a battle over what is left behind. Unfortunately, there are situations when that is necessary and in those cases, you need a legal professional to fight for what you deserve so that you can focus on grieving. 

Family Provision Claim Defined 

A family provision claim is an application an individual can make to the Supreme Court in a bid to gain a share, or increase their share, from a deceased estate if they do not feel as though they were adequately provided for. There is no strict rule about what is classified as adequate provision, this is generally based on the age of the person making the claim, their life situation, and even sex. Adequate is relative to both needs and one’s capacity for meeting those needs. For example, a minor child may have a greater need for provision than an adult child with an established career. And an adult with disabilities may have a greater need for provision than a minor child. 

Family provision claims are also known as Contesting a Will, Part IV claims or even Testator Family Maintenance. 

To make a claim, you must first be an eligible person, you must also have been left out of the Will or, did not receive what you believe you were entitled to. To make a claim, you need to file the family provision claim within twelve months following the death. 

Who Is Eligible To Apply? 

You need to be an eligible person to file a family provision claim, but who is classed as an eligible person? You are an eligible person if you were: 

  • The spouse of the deceased
  • In a de facto relationship with the deceased
  • One of the deceased’s children (including adopted)
  • An ex-spouse of the deceased
  • Dependent on the deceased, whether partly or wholly, at some point during their life. This includes a grandchild or member of the household
  • In a close personal relationship with the deceased or living with them at the time of their death 

When Does The Court Get Involved 

Once the family provision has been claimed, the Court must decide whether the family provision claim holds weight. The Court will consider the will of the deceased, and whether there is evidence of why the deceased drew the will they did. They will also consider other evidence regarding the intentions of the deceased with regard to the claimant. Additionally, the Court will consider whether the deceased had a moral duty, at the time of death, to provide for the claimant. It will also consider the degree to which the estate was inadequate with regard to the claimant.

The location and value of the estate will also be taken into consideration, as well as the claimant’s financial circumstances and whether the claimant has disabilities; their age, character, and any other information that may be relevant. 

If you fall into the eligible person category and believe you are entitled to make a family provision claim, you should seek legal advice. Your best chance of succeeding in your claim is consulting with a legal professional who can put together your claim and pursue it. 

How AJB Stevens Can Help 

When you make a family provision claim, there is a filing fee, which is another important reason to get legal advice first. Additionally, the legal costs won’t necessarily be paid by the estate. If the claim is unsuccessful, you will have to cover your legal costs, as well as the defendant’s costs. 

If you aren’t sure whether you would fall into the eligible person category, you should speak to a legal professional before you move forward with making a family provision claim. The team at AJB Stevens can help you determine whether you qualify as an eligible person. There is a time limit when it comes to filing a family provision claim and we will ensure you adhere to those limits and determine whether you meet the basic conditions necessary to file a claim. 

Before you file a family provision claim, mediation might be a more effective way to resolve the dispute. It can prevent you from a time-consuming court process. You will save a lot of stress, time, and money by settling your dispute with mediation rather than filing a claim. 

At AJB Stevens, we can offer you advice on the mediation journey as well as assist you with the family provision claim if it comes to that. There are no set rules about how long the ruling will take or how the claim will play out. Many of the claims are determined by how willing parties are to negotiate, the availability of evidence, and the makeup of the estate. The most successful claims are decided in mediation. It’s always best to seek professional advice before you launch legal action. Contact us today.