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November 12, 2015
Claiming Against a Deceased’s Estate

By Aaron Kitson

Under the Australian legal system, people are free to decide how they wish to distribute their assets upon death and to whom. Such decisions should be encapsulated within a legally valid Will.

Where a person has not made a legally valid Will during his or her lifetime then, upon such a person’s death, the distribution of their estate shall be determined by the laws of intestacy.

However, by a person exercising his or her freedom of testamentary disposition under a Will, or by operation of the laws of intestacy where there is no Will, an impropriety in the way a deceased’s estate is distributed may occur.

Acknowledging this potential risk, the Australian legal system has legislation in place which enables the Supreme Court to vary a Will or the distribution of an estate in favour of an eligible applicant, who has filed a claim, on specified grounds. This legislation is known as the Family Provision Act 1972 (the ‘Act’).

The Act applies to testate and intestate estates and grants the Supreme Court the power to make provision out of a deceased’s estate where the deceased did not make proper provision for a claimant.

If a claimant is successful with their claim, the claimant will be entitled to a share of the deceased’s estate notwithstanding the terms of a Will or the laws of intestacy.

However, claims do not have to be settled with the assistance of the Supreme Court. A claim may be settled by negotiating an agreement (known as Deed of Family Arrangement) between the Executor/Administrator, the beneficiaries of the deceased’s estate and the claimant as to the distribution of a deceased’s estate.

Who May File a Claim?

Eligible applicants who may file a claim against a deceased’s estate include:

Children of a deceased

Spouse or de-facto partner of a deceased

Former spouse or partner of a deceased where maintenance was being paid by a deceased

Step children of a deceased

Grandchildren of a deceased

Parents of a deceased


Factors Affecting Eligibility


When assessing whether an eligible applicant has received adequate provision from a deceased’s estate, the following matters must be considered:

Whether the applicant is eligible to make a claim

Are there other eligible applicants

The date of the Grant of Probate or Grant of Letters of Administration

Your financial position

Other beneficiaries financial position

The deceased’s estate value

Whether you require a share of the estate for maintenance, support, education or advancement in life, claims under the Act are complicated and should be considered with the assistance of a lawyer.

If you have any questions about the above or Wills, Probate or Estate Litigation in general, please contact Aaron Kitson of LBH on akitson@lbandh.com.au