Before making a claim on an estate in South Australia, first ask yourself these five key questions, writes Wills and Estates lawyer Fiona Fagan.
Before making a claim on an estate in South Australia, first ask yourself these five key questions, writes Tindall Gask Bentley Wills and Estates lawyer Fiona Fagan.
Are you an eligible person?
Before making a claim in an estate, you must make sure that you are eligible to do so. In South Australia, you must fall into one of the following categories.
1. the spouse of the deceased person;
2. a person who has been divorced from the deceased person;
3. the domestic partner of the deceased person;
4. a child of the deceased person;
5. a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
6. a grandchild of the deceased person;
7. a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;
8. a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
Are you in time to make a claim?
A claim must be made within six months from the date of the Grant of the Probate or Letters of Administration. The court may grant an extension of time depending on the reasons for the delay and other factors.
Have you received enough provision or have you been completely left out of the Will?
Whether you have received enough of the estate or whether you have been completely left out of the Will, you will need to establish what is in the estate. If the estate is small then leaving you out of the Will or only leaving you a small legacy could be justified. If the estate is substantial and you do not think that the deceased has provided adequately for your advancement in life you could have a claim.
If there is no Will, the estate will pass on the intestacy laws which may not provide adequate provision for you either.
Do you have a need for ‘provision’?
An essential element of your claim will be that you must be able to demonstrate you have a need for provision. If you have a mortgage on your property or are renting, receiving a government allowance, have dependent children or are of ill health it may be easier for you to prove that you have a need for provision and should have been provided for. Alternatively, if you own your home, earn a good income, have substantial superannuation and are of good health it could be difficult to prove that you have a need for further provision. If your needs fall between the two examples, provided the adequacy of the provision, the question will again turn to the size of the estate and other factors.
Who else could be claiming?
The court has to weigh up the wishes of the deceased person versus the needs of any eligible persons the deceased failed to adequately provide for. The other parties would be anyone that satisfies the criteria at Question 1 and the beneficiaries who are named in the Will. You will then have to consider your financial circumstances in comparison to those people. Do they need the money more or less than you do?
Please note that even if you answer yes to all of the above questions it does not guarantee that your claim would be successful and even if you answered no to some of the above questions it does not mean you can’t make a claim but it is a starting point. Getting legal advice as soon as possible is essential due to the short time limits and the risk the estate will be distributed prior to notice of your claim.
If you believe that you could be entitled to make an Inheritance Claim, or have any other questions, contact TGB lawyers.