October 19, 2022

Have you been left out of a Friends Will.


Have you been left out of a Friend’s Will (or not adequately provided for)?

What is a ‘Family Provisions’ claim?

If you believe you have been left out of a Friend’s Will you may be entitled to make a claim on the deceased person’s estate under a Family Provisions claim.

There are six categories of persons who can make a claim in respect of the estate of a deceased person. A claimant must satisfy the court that ‘adequate provision’ for the ‘proper maintenance, education or advancement’ in life has not been made. In such cases a Court may issue a family provision order that takes effect as if the provision was initially a part of the deceased’s will.

The court will look at many factors in deciding whether proper provision has been made for the claimant, including looking at the fortune of the deceased person and a child’s station in life.

A Cautionary tale where a ‘Friend’ was a successful claimant in a Family Provision Order:

In the case of Rakovich v Marszalek [2020], Marszalek passed away without a Will at age 79, thereby passing the estate, through the statutory rules of Intestacy, to his two surviving relatives (niece and nephew).

Marszalek had a friend named Rakovich with whom he lived (full-time) from 2012. Rakovich initiated a family provision claim against the estate.

Rakovich satisfied the ‘eligible person’ definition of ‘close personal relationship’, defined as between two adults who live together and provide domestic support and personal care for each other.

The court considered that Rakovich was not as successful financially as the deceased’s niece and nephew, his age and his multiple medical conditions. The court also noted that Rakovich and Marszalek relied on each other in a ‘mutually dependent’ relationship.

Finally, the court considered that Marslek’s beneficiaries lived overseas and had never personally met Rakovich and had made minimal attempts to make or maintain contact.

Accordingly, Rakovich was successful in his claim, receiving a lump sum of 45% of the net value of the estate.

Eligibility to make a Family Provisions Claim

An eligible person to make a Family Provisions Claim includes but is not limited to:

  • the person who seeks the order is eligible
  • A person living in a de facto relationship at the time of the deceased person’s death;
  • A person who at any time was wholly or partly dependent on the deceased;
  • A person living in a close personal relationship at the time of the deceased person’s death.

The above-mentioned eligible person can make a claim on the following grounds:

  • If the share of the deceased’s property is not adequate for their maintenance and support;
  • no adequate provision for the proper maintenance, education or advancement in life for the person has been made in the will of the deceased.
  • If the relationship between the deceased and the eligible persons began after the last Will was made;

Factors examined by the Court to determine the amount that will be provided if a claimant is successful include but are not limited to:

  • The value of the estate
  • The financial needs of the claimant
  • The age of the claimant
  • The contributions made by the claimant to the deceased person’s estate
  • The nature of the relationship between the deceased and claimant.

Are there time restrictions for my application?

Importantly, an application for a family provision order must not be made later than 12 months after the deceased person has passed.

A well-drafted Will:

The importance of a well-drafted Will is clearly seen in the case of Rakovich. If Marszalek had prepared a Will clearly distributing the assets amongst chosen beneficiaries (rather than allowing the statutory rules of intestacy to decide) then potentially Rakovich would have been provided for without the need to initiate a Family Provision claim.

Important takeaways:

  • A ‘Friend’ can be a successful claimant on the estate of the deceased person under the Family Provision Regime.
  • Claimants must satisfy certain categories to satisfy the court that there are factors that warrant the making of an application.
  • An order for a Family Provision claim is discretionary in nature, and the claimant must establish that the deceased failed to make ‘proper’ provision for the eligible person

The importance of specialist advice in determining if you are eligible to make a Family Provisions claim is clear.

For a free, no obligation review of your current circumstances, simply pick up the phone or email us on;
Call us now: 1800 893 836
Email us now: info@bizlawyers.com.au
Website: https://bizlawyers.com.au/services/wills-a.html

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