What is a Succession Act Claim?
A Succession Act Claim is a claim bought against a deceased person’s estate pursuant to the Succession Act 2006 (the Act). They are claims initiated by eligible persons who feel they have been unfairly left out of, or inadequately provided for under, the will of a deceased person. The Act gives a Court the power to make a provision for a successful applicant to receive money, property or assets from the deceased person’s estate.
The Act requires that any person making a claim for further provision from the estate must commence proceedings within 12 months of the deceased person’s death.
Who is eligible to make Succession Act Claims?
In order to make a claim pursuant to the Act the applicant must be an eligible person. Section 57 of the Act lists the following people as eligible persons:
- A spouse of the deceased;
- A de facto partner of the deceased;
- Any child of the deceased (including adopted, ex-nuptial and stepchildren);
- A former Spouse of the deceased;
- A person:
- Who was, at any time, wholly or partly, dependant on the deceased; or
- Who was a grandchild of the deceased or, at any time, a member of the household of the deceased;
- A person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death;
Where an eligible person is prevented from making a claim due to a legal incapacity, a third party may bring a claim on their behalf.
How are claims made and how does the Court decide?
Claims are made by filing a summons in Court with a supporting affidavit, which gives details of the applicant’s claim over the deceased’s estate.
A Court will not make provision under the Act unless it is satisfied that the applicant is an eligible person and that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person. To determine this, a Court will consider a number of relevant factors, including the nature and value of the deceased person’s estate, the applicant’s age, financial resources and any disability, the relationship between the applicant and deceased person, the extent to which they received benefits from the deceased during the life of the deceased, the character of the applicant and their contribution to the well being of the deceased person and their property.
What are the limitations of Succession Act claims?
The provisions of The Succession Act 2006 provide for legally adopted children however it fails to provide for informally adopted children, a practice which is common amongst aboriginal communities. This remains a grey area in Succession Act claims.
For more information and advice on Succession Claims, contact WMD Law on (02) 9525 8688