There are a number of ways to claim from a deceased estate. The most common claim is a family provision application, which can be made where a person dies and has not made adequate provision for you from their estate.These claims can arise regardless of whether a Will has been left.

Greg McKinnon discusses who is eligible to make a claim and raises some practical considerations.

Who can make a claim?

Queensland legislation sets out different classes of eligible applicants. The following relatives of the deceased are eligible to apply:

  1. Spouse
  2. Child
  3. Dependant

Spouse

A spouse will include the husband or wife of the deceased, as well as the de facto partner or civil partner of the deceased. A de facto partner will generally be someone who lived with the deceased on a genuine domestic basis, but was not married to them or related by family. A civil partner is someone who has had their relationship with the deceased registered. Both de facto partner, and civil partner can include same-sex partners.

Child

A child will include any child, stepchild, or adopted child of the deceased.

Dependant

A dependent is any person who was being wholly or substantially maintained or supported by the deceased at the time of the person’s death. This may include a parent of the deceased, the parent of a surviving child under the age of 18 years of the deceased, or a person under the age of 18 years, for example a grandchild of the deceased.

Your rights

When someone close to you passes away and you feel you have not been treated fairly or are being ignored by other family members, you need to get legal advice about your rights quickly.

A solicitor can arrange for you to exercise your right to inspect the Will, or to be provided with a certified copy should one exist. A solicitor can also assist in requesting a list of assets and liabilities of the estate and perform searches with government departments about property held by the deceased.

Appropriate early steps and proper legal advice will enable you to receive an appraisal of the prospects of your case before deciding how to proceed.

Strict time limits apply

You must provide written notice of your intention to make an application within six months of the date of death to avoid the risk of your claim being defeated or compromised by valid distribution of assets.

Your court claim must be commenced within nine months after the date of death. If your court claim is late, you may be prevented from making a claim, and lose any rights you may have. Extensions of time can only be obtained with special permission from the court in extenuating circumstances.

Most cases settle out of court before reaching a final hearing on terms satisfactory to the client. Successful cases which reach final hearing usually result in the applicant’s legal costs being paid from the estate.

The deep sorrow experienced when losing a loved one can be overwhelming. We are able to assist you during the difficult period in a way that protects your interests while ensuring the process is carried out respectfully.