Family Provision Claims in Australia have a long history, dating back to the early 20th century. The first legislation to provide for family provision claims was the Inheritance (Family Provision) Act 1938 (NSW), which was enacted in New South Wales.
In the decades that followed, similar legislation was enacted in other Australian states and territories, allowing eligible family members to make a claim for provision from a deceased person’s estate if they were not adequately provided for under the will or in accordance with the laws of intestacy.
Over the years, the laws governing family provision claims have evolved and been refined, with changes being made to the eligibility criteria and the types of orders that can be made. For example, in some states, the definition of “eligible person” has been expanded to include a wider range of family members, such as de facto partners and stepchildren.
In recent years, there has been a trend towards more flexible and generous provisions for family members, particularly in the area of estate planning and testamentary trusts. This has been reflected in a number of important court decisions, which have expanded the scope of the laws and reinforced the importance of making adequate provision for family members in estate planning.
Today, family provision claims remain an important aspect of succession law in Australia and are a key part of the broader legal framework that governs the distribution of a deceased person’s assets. They continue to play an important role in ensuring that eligible family members are provided for, and that the intentions of the deceased are respected.
What are the key policy issues in making a family provision claims in Australia?
- Eligibility criteria – The eligibility criteria for making a family provisions claim are set out in legislation and are subject to interpretation by the courts. There is ongoing debate about the criteria for eligibility and whether they should be expanded or tightened.
- Discretion of the court – The court has discretion to decide the outcome of a family provisions claim, and this discretion can result in inconsistent decisions and unpredictable outcomes. There is ongoing debate about the level of discretion given to the court and whether it should be limited or expanded.
- Burden of proof – The burden of proof in family provisions claims rests with the claimant, and there is ongoing debate about whether this burden should be shifted to the deceased person’s estate.
- Timing of claims – The timing of family provisions claims is important, as the claimant must make the claim within a certain time frame. There is ongoing debate about whether the time frame should be extended or shortened, and whether it should be more flexible to accommodate the needs of different claimants.
- Legal costs – The cost of making family provisions claim can be high, and there is ongoing debate about whether the cost should be borne by the claimant, the deceased person’s estate, or the taxpayer.
- Public nature of proceedings – The public nature of family provisions claims can result in sensitive personal information being made public, and there is ongoing debate about whether the proceedings should be conducted in private to protect the privacy of the parties involved.
These are some of the key policy issues in making family provisions claims in Australia. They reflect the ongoing debate about the balance between protecting the rights of eligible family members and ensuring that the assets of an estate are distributed in a fair and equitable manner.
Statistics in Australia relating to family provisions claims?
In Australia, family provision claims are a common aspect of succession law, and the statistics surrounding them provide important insights into the frequency and nature of these types of claims. According to data , the number of family provision claims has increased in recent years, reflecting a growing trend towards more flexible and generous provisions for family members. In particular, there has been a significant increase in the number of claims made by de facto partners and stepchildren, who have been recognized as eligible persons in many states and territories.
The success rate of family provision claims also varies depending on a number of factors, including the size and complexity of the estate, the nature of the relationship between the claimant and the deceased, and the legal arguments raised in the case. Overall, however, the success rate for family provision claims is relatively high, with a significant proportion of claims resulting in some form of provision being made to the claimant.
In terms of the types of provision that are being made, the data suggests that the most common form of provision is a cash payment, although other types of orders, such as the transfer of property or the creation of a testamentary trust, are also being made with increasing frequency.
Finally, the average length of time it takes to resolve a family provision claim also varies depending on a range of factors, including the complexity of the case, the availability of evidence, and the willingness of the parties to reach a settlement. In many cases, however, family provision claims are resolved relatively quickly, with a significant proportion of cases being settled within a matter of months.
In conclusion, the statistics surrounding family provision claims in Australia provide valuable insights into the frequency and nature of these types of claims and highlight the important role that these claims play in ensuring that eligible family members are provided for and that the intentions of the deceased are respected.
The success rates in Australia relating to family provisions claims and eligible person.
The success rate of family provision claims in Australia varies. Depending on a number of factors, including the size and complexity of the estate, the nature of the relationship between the claimant and the deceased, and the legal arguments raised in the case.
However, overall, the success rate for family provision claims is relatively high, with a significant proportion of claims resulting in some form of provision being made to the claimant.
What are the risks of failing to revise your estate plan in relation to potential family provision claims in Australia?
If you do not review your estate plan on a regular basis, the following risks may arise:
- Unintentional distribution of assets: Your possessions may not be allocated as you planned, causing discontent among family members.
- Family provision claims: If a family member believes that they have been inadequately provided for in your will, they may file a family provision claim, which can result in expensive legal processes and potentially reduce the value of your inheritance.
Without adequate estate planning, there is a heightened possibility of disagreements among family members, which may generate emotional and financial burden for all parties concerned. Legal fees and court costs related with family provision claims might lower the amount of inheritance heirs receive.
Time-consuming and expensive
The process of resolving family provision claims can be time-consuming and costly, resulting in a substantial drain on your estate’s assets.
It is recommended to regularly review your estate plan and ensure that it meets your current wishes and takes into account any changes in your personal circumstances
Tony Anamourlis is the National Practice Director – Victoria, NSW and Qld for Abbott and Mourly – and he is an expert on Tax, Tax Structuring, Superannuation and SMSF Property Structuring, and Estate Planning.