Probate and letters of administration in a family provision order claim

When making an application for a family provision, there are a number of things that should be taken into account by a potential litigant and may include: the eligibility of a person in bringing up a claim, when an application is to expire, and whether or not probate or letters of administration are required – which will be the focus of this piece.

When can a person initiate a family provision claim?

One of the important things to remember when someone is making a family provision claim, is that all of the eligibility requirements have been met, and it’s also important to be mindful of the fact that all States and Territories have differing eligibility requirements.

However, a good gauge of the various considerations of the court can be found in s 60(2) of the Succession Act 2006 (NSW) which states the following:

“(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

Similar to the eligibility requirements, the process of initiating proceedings also differs between the jurisdictions, so for example in New South Wales, family provision proceedings usually are made on summons, while in Victoria, an originating motion, such as an affidavit filed after directions, is the correct process when making an application in regards to family provision litigation.

Therefore, it’s vital for anyone who wishes to initiate proceedings that they seek the help of a lawyer who will be able to help – especially when proceedings encompass multiple jurisdictions.  

When is a grant of representation required?

Depending on the jurisdiction, probate or letters of administration must be obtained before a family provision order can be made. Therefore in all jurisdictions besides Queensland, an applicant must wait for a grant of probate or letters of administration, or alternatively, the process of gaining probate or letters of administration has been initiated, which will allow a family provision claim to be made. It is important that the terms of the final will or the application of intestacy must be certain, so as to allow the courts to have the capability in ascertaining whether a provision may be made to an applicant from the estate.

However as noted earlier, under s 41(8) of Queensland’s Succession Act 1981, “unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.”

We should add that in addition to Queensland, New South Wales is also another jurisdiction where time to bring an application starts from the date of the death, which may necessitate an issuing of a family provision claim before the granting of administration, and such an action will allow the application to be remain within the mandatory time limits.

Obtaining probate or letters of administration in regards to family provision applications can be extremely complex. Therefore, it’s important that if you are considering such an action, that you obtain the help of a legal practitioner.



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