As you probably would expect, when it comes to the division of assets following the death of a loved one, there can be beneficiaries or those who are potentially entitled to something out of the estate who feel that they have been inadequately provided for. So what happens in this circumstance? In this podcast, Larissa Zeil-Rolfe, Lawyer at South Geldard Lawyers discusses family provision claims.

Transcript

Dan: As you probably would expect, when it comes to the division of assets following the death of a loved one, there can be beneficiaries or those who are potentially entitled to something out of the estate who feel that they’ve been inadequately provided for. So, what happens in this circumstance? Well, today I’m with Larissa Zeil-Rolfe, and we’re discussing family provision claims. So Larissa, what is the criteria for a family provision claim?

Larissa: The criteria for a family provision claim is that a family provision applicant must show that the terms of the will or the result of the intestacy fail to provide adequate provision from the estate of the deceased for their proper maintenance and support.

Dan: How is this actually determined?

Larissa: It’s determined using a two-stage approach that the High Court developed in the case of Singer and Berghouse. So, stage one is what’s known as the jurisdictional question. That’s where the court considers whether the provision made, if any provision was made, was inadequate for what, in all the circumstances, was the proper level of maintenance appropriate for the applicant, having regard to the applicant’s financial position, the size and nature of the deceased estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and the other persons who have legitimate claims upon the deceased bounty. If the answer to stage one is yes, then stage two involves deciding what provision ought to be made.

Dan: So, what factors are considered to determine if no proper maintenance or support has been provided?

Larissa: In determining stage one, the court considers two things: need and moral claim. So, for need, an applicant needs to show that in a broad sense, they have a need of maintenance and support. That need is understood to be relative to the size of the estate, and there’s no requirement that the applicant be destitute in order to be successful in a family provision application. The second thing the court considers is the moral claim. That’s referring to the deceased moral duty to provide the applicant and the applicant’s moral claim on the estate if that duty has been breached. There are many elements that can enhance an applicant’s moral claim, such as contributions by the applicant to building up the deceased’s estate, a close relationship between the applicant and the deceased, and the deceased influence on the applicant’s lifestyle.

Dan: Now, if anyone listening to this podcast has questions, they can reach out to you and the team at South Geldard?

Larissa: Absolutely, anyone interested or in need of advice can get in contact with me via our website or through our office by calling in.

Thank you for listening. If you have any questions, please do not hesitate contacting Rockhampton, Brisbane, and Yeppoon lawyers at South Geldard on 07 4936 9110.