Claiming Against a Deceased Estate

Under the Australian legal system, people are free to decide how they wish to distribute their assets upon their death. Such decisions should always be confirmed within a Will.

Where a person has not made a Will during their lifetime then, upon their death, the distribution of their assets will be determined by the laws of intestacy.

By a person confirming how their assets are to be distributed in a Will, or by the laws of intestacy where there is no Will, an inadequate or improper distribution of the estate may arise.

Acknowledging this risk, the Supreme Court of Western Australia may vary the distribution of an estate in favour of an eligible claimant who has filed a claim pursuant to the Family Provision Act 1972.

A successful claimant will be entitled to a share of the deceased’s estate regardless of the terms of a Will or, if applicable, the laws of intestacy.

However, claims do not always have to be settled with the assistance of the Supreme Court.

A claim may be settled by agreement (known as a Deed of Family Arrangement) between the Executor/Administrator, the beneficiaries of the deceased’s estate, and the claimant.

Who Can Claim Against a Deceased Estate?

Eligible claimants who may file a claim against a deceased’s estate pursuant to the Family Provision Act 1972 include:

1. Children of a deceased.
2. Spouse or de facto partner of a deceased.
3. Former spouse or partner of a deceased where maintenance was being paid by a deceased.
4. Stepchildren of a deceased (in certain circumstances).
5. Grandchildren of a deceased (in certain circumstances).
6. Parents of a deceased.

How Are Claims Determined

When assessing whether an eligible claimant has received adequate and proper provision from a deceased’s estate, the following matters are some of the items considered:

1. Whether the claimant is eligible to make a claim.
2. Whether there are other eligible claimants.
3. The date of the Grant of Probate or Letters of Administration.
4. The claimant’s financial position.
5. The beneficiaries’ financial positions.
6. The value of the deceased’s estate.
7. Does the claimant require a share of the estate for their maintenance, support, education or advancement in life?

Commencing and resolving claims pursuant to the Family Provision Act 1972 are complicated and should always be considered with the assistance of a lawyer.

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