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How do you know if you have a claim to an estate?

If you have just received a copy of the Will of one of your passed beloved and are shocked at what the Will not worry...the law provides for "entitled persons" to make a claim to the estate pursuant to the Family Provision Act where the testator has failed to make adeqaute provision for the proper maintenance, support or advancement in life of the entitled person.

In order to determine whether that has occured, the Court will ultimately look at:

1. the applicant's financial needs and his or her need for, and moral claim to, provision from the estate;

2. the need and moral claims of other persons who have a legitimate claim upon the testator's bounty; and

3. the size of the estate, as at death.

The terms 'maintenance', 'support' and 'advancement' encompass not only provision for the supply of the necessaties in life, but also extend to provision over and above mere sufficieny of means upon which to live, and may extend to provision which would enable a potential beneficiary to improve his or her prospects in life. (Maas v O'Neill [2013] WASC 379)

The rules most certainly extends to adult children who may fall on hard times. Where there are assets available, then a parent may be expected to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute. (Taylor v Farrugia [2009] NSWSC 801)

This does not mean that if an adult child recklessly and or intentionally mismanages his or her finances, that they will automatically be entitled to provision of the estate.

If you think you may be an entitled person, inquire within for our assistance.

Author: Danielle De Roberto


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