Why it is essential to get legal advice on any Deceased Estate or Family Provision Claim matter?

If your loved one has passed away, and you believe you have been unjustly excluded from receiving an entitlement or are to receive an entitlement of an amount lower than what you expected or believe is fair, it is imperative that you get prompt legal advice to ensure you understand your rights and obligations should you decide to make a Family Provision Claim.

What is a Family Provision Claim? This is a legal application made to Court to request a share or larger share of the Estate than set out in the Will of the deceased. You must set out grounds for your claim. There are various factors that are taken into consideration by the Court including but not limited to your relationship with the deceased whilst they were alive, your financial position, any need for financial assistance, and those of other beneficiaries.

If you decide to proceed with an application to Court, there are strict time restraints that you must adhere to, along with strict obligations to notify the Executor or the Executor’s legal representative of your intention to make a Family Provision Claim and that a claim has been made. If you do not comply with your notification obligations to the Executor, the Executor may have protection under s99A of the Administration and Probate Act to distribute the Estate as per the Will.

By way of example, in the case of Haddow v Haddow (2021), a son was excluded from his mother’s Will. He intended to make a Family Provision Claim to the Supreme Court against his mother’s estate.  His legal representative notified the Executor within 6 months from the date of Probate of the son’s intention to file a claim. The son filed his claim, however his legal representative did not notify the Executor within 3 months from the date they advised of their intention to file a claim, that the Application had actually been made. Despite the son filing the claim within the required timeframe, his failure to notify the Executor that an Application had been made resulted in a breach of his obligations of the Act, and it was therefore ordered that the Executor was to distribute the Estate as per the Will. The son therefore did not receive any entitlement under his late mother’s Will.

The above case highlights the importance of obtaining sound legal advice for both dealing with a deceased Estate as Executor, as well as a beneficiary.

If you are the Executor of an Estate, or a beneficiary, be sure to contact Wollerman Shacklock Lawyers. Our experienced staff will be able to guide you through every step of the way so that you can ensure you are meeting your legal obligations.