A large number of people may die without making a Will. In cases where the deceased did not specify anything regarding future provision of the family members, it can lead to a long drawn litigation process.
However, all States or Territories in Australia have legislation which provide for Family Provision Orders which are issued if the deceased dies intestate. The Courts are also empowered to intervene in case the distribution provided by the legislation is inadequate for making proper living provisions for the family.
How Is the Division Carried Out?
Previously, in case a person died intestate, the State Government distributed the assets according to a predetermined formula and specific family members received a certain percentage of the assets of the deceased. The State Government was entitled to take over the assets of the deceased, if there were no surviving relatives.
However, with the introduction of new legislation in different States, the entire process became more complicated. New South Wales (NSW) introduced reforms through the NSW Succession Amendment (Family Provision) Act 2008 which introduced the concept of ‘multiple spouses’ to include within its purview de facto relationships, same sex partnerships and multiple partners to regard the sentiments of different religions and cultures.
Considerations for Making a Family Provision Claim
The claim for family provision depends on determination of the fact whether an Applicant has been actually left without adequate provision by the laws of intestate. If only a favourable assessment is made, the Court decides on the appropriate share, the Applicant is entitled to get out of the estate of the deceased.
The High Court of Australia laid down the two fold test in the case of Singer v Berghouse [(1994) 181 CLR 201] and emphasised on the fulfillment of those two stages before making Family Provision claim.
The Honourable Judge may use discretion for deciding upon the amount or value of provision for the family members. Though the fulfillment of the two fold test is necessary, laws in some jurisdictions, like in Victoria, Section 91(1) of the Administration and Probate Act, 1958 mandates that family provision can be made for anybody towards whom the deceased owed a responsibility to provide for.
Our team of experienced professionals at Owen Hodge Lawyers may guide you in every aspect of filing a Family Provision claim. We may assist you in drafting, filing and obtaining an appropriate Order to safeguard your interests after you have lost a loved one. Please feel free to contact us for our advice.