Article Category - Wills & Estates By Peter McManus 23 March 2021

There are six main categories of people who may be eligible to contest a Will via a Family Provision claim. They include:  

1.     The Husband or a Wife of the deceased person. To be an eligible person they must prove that they were married to the deceased.

2.     A De-facto partner. To be considered as an eligible person, they must prove that they were living with the deceased at the time of death and either their relationship was registered or they were living together and they were not married to each other or related by family. The Court has a number of criteria’s that the Court may consider if someone was in a De-facto Relationship.

3.     A Child of the deceased at any age may make a Family Provision Claim. The definition of child of the deceased is quite broad.

The next three categories of eligible persons; the Court must be satisfied having regards to all the circumstances (past or present) that there are factors which warrant making an Order and there was not a proper provision for the maintenance, education and advancement of the claimant during the deceased’s life or in the deceased’s will and that the claimant has a genuine need (“the jurisdictional hurdle”).

4.     A former Husband or Wife of the deceased person (“The former Spouse”) must show that they were at some stage married to the deceased person and that they were divorced. A former Spouse is not precluded from making a claim even if there was a Family Law property settlement, but they must get over the jurisdictional hurdle.

5.     Miscellaneous category: practically any person can make an application under this category even if they were not related to the deceased. However, they must prove that they were at any time totally or partly dependent on the deceased, they were a member of the same household as the deceased and they must get over the jurisdictional hurdle.

6.     A person with whom the deceased was living in a close personal relationship is defined as a person who is living with the deceased person but were not married or in a De-facto relationship, they must be living together as at the date of death of the deceased and one or each of them were providing the other with domestic support and personal care and they must also get over the jurisdictional hurdle.

As always, the answers provided are for your general information only and we ask you to call our office on 1800 650 656 to obtain detailed legal advice for your individual situation.

Peter McManus | Senior Associate

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