Did you know that a former spouse/domestic partner will be eligible to bring a claim against your estate in some cases? Their children may also be eligible claimants.
The Court has interpreted “stepchildren” to extend to de facto stepchildren, i.e. your domestic partner (de facto) partner’s children may be regarded as your stepchildren even though you are not married to their parent.
Under Part IV of the Administration and Probate Act a dependant of any person may make a claim against the estate of that person for proper provision. The legislation was amended as at 1 January 2015 and the revised legislation applies to all deaths on or after this date. This is often referred to as Testator’s Family Maintenance or a “Part IV claim”.
Even if a Will is created correctly, disputes can arise after a person’s death.
The right to make a claim for Testator’s Family Maintenance arises when a deceased person fails to make adequate and proper provision for the maintenance and support of the claimant in their Will in light of the deceased person's circumstances and their moral obligation to the claimant.
The introduction of this legislation has seen the categories of potential claimants limited to eligible persons. Former spouses and their children may be eligible claimant depending on the circumstances.
A legal wife or husband will be an eligible claimant at least until such time as you divorce.
A former spouse will be an eligible claimant if they would have been able to issue proceedings under the Family Law Act 1975 and have either:
not started those proceedings; or
is unable to finalise them because of your death.
If family law proceedings have been started and can be continued post death, it is possible for such matters to be finalised under the Family Law Act 1975 with your legal personal representative to step into act in your place.
If you finalise a binding family law property settlement with a former spouse, it will generally be more difficult for them to later demonstrate that they have a need for further provision from you from your estate.
We stress that eligibility to claim against an estate does not necessarily mean however the person should bring an application or that they would be successful if a claim was brought.
Former spouses may also be able to satisfy one of the other categories of eligible claimant in some circumstances and may be eligible to bring claims on behalf of others, most likely their minor children.
If you have separated, we strongly recommend that you obtain professional family law and estate planning advice. RNG Lawyers have a team approach and our teams will work collaboratively to ensure that you receive thoughtful, practical advice that covers the overlap between family law and estate planning.
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