Family Provision Claims

Have you been left out of a Will or received less of an entitlement than you think you are entitled to? Are you entitled to make a Family Provision Act Claim?  Are you an Executor facing a Family Provision Act claim?

In order to be successful, a claimant needs to satisfy a number of criteria.  Firstly, they need to be an ‘eligible’ person within the definition contained in the legislation.  Our Will dispute lawyers can assist you in identifying whether someone is an eligible person.

Determining a family provision claim involves a two-stage process, that is, deciding if a person has been left without adequate provision for their proper maintenance and support and if the answer is ‘yes’, deciding what provision ought to be made.

At the first stage, various factors must be considered, including what an appropriate level of maintenance for the person would be, taking into account their financial position, the value of the estate, their relationship with the deceased and also their relationship with other beneficiaries.  These factors must be seen in the context of the particular circumstances of the case.

The Court must also look at the totality of provision made by the deceased during their lifetime as well as what is left by the Will. In deciding whether it is proper to grant an order the Court must consider factors such as the competing interests of others, including but not limited to, creditors.

There is a limited time to make a family provision claim.  Proceedings must be commenced by filing a Summons and paying the filing fee to the Supreme Court within 12 months from the date of death.  As extension of time may be granted by the Court in their discretion.

Our experienced Will dispute lawyers can assess the family provision claim you are faced with and help you to run your case.  In many circumstances, you may be able to reach an amicable settlement which may prevent you having to file proceedings in the court and we can also provide you with legal advice with respect to what would be deemed an appropriate settlement in support of your circumstances.