Time to bring a family provision claim? How to know if you are too late

Let’s begin with the basics. FPA claims are the abbreviated term for a Family Provision Claim. When a person makes a Will they can leave any (legal) wishes that they may have for the loved ones they leave behind.

However, some people may want to ask for a further provision despite what the Will says. People who are allowed to do this include; current and previous spouses, de facto partners, children or people who have been dependant on the deceased (including grandchildren who have been financially dependent on the deceased). 

IMPORTANTLY, the Court says you need to make this claim no later than 12 months from the date that the deceased passed away.

In exceptional circumstances, the Court has shown that there are times where they might extend this time frame. Let’s consider this case of the Estate Gooley, in 2022.

Mr Melville Gooley died in December 2017, leaving behind 4 children and 11 grandchildren.

Mr Gooley left the Estate in quite an ordinary way. In his Will he divided his Estate (roughly $17,000,000) between his 4 surviving children, and any money given to the grandchildren would need to be done by their parents.

This did not sit well with one of the grandchildren. That grandchild had a history of drug addiction, lived in public housing and was unlikely to improve his financial circumstances. His father did not believe he would recover and refused to give him money. So, the grandson made a family provision claim seeking money directly from the Estate.

The Court gave him an extension of time to submit the claim because:

1. He did try to get one version in on time, but it was rejected because it did not have the correct documents attached (legal advice is important!)
2. He was only 2 months late, so it did not affect matters substantially; and
3. At the time of the hearing none of the money had been distributed yet.

The grandchild was found to be dependent on the deceased and was awarded $250,000.00 from the Estate.

The Court can consider many things when granting an extension of time, but mostly they will look to see if anyone is affected by it, if you have made any previous efforts to get the claim in on time, and whether any of the administration of the Estate has begun.

If you think you may be eligible to make a claim of this nature please contact the Estate Planning team by calling 4626 5077 or emailing kwolthers@marsdens.net.au