Can the rules of intestacy be contested?

Written by Terry Johansson | 18th September 2013

Yes. As an unmarried partner, you can contest the division of the estate under the rules of intestacy and seek provision for you by making a ‘family provision’ claim under the Act.

A potential claim against the estate will only arise if:

  • The deceased died whilst domiciled in the relevant State; and
  • You make the claim within the prescribed time limit;
  • You are eligible to make a claim against the estate; and
  • You can prove that you failed to receive reasonable financial provision as a result of the rules of intestacy.

Usually the issue of domicile will be quite straightforward. The general rule is that the deceased is considered to be domiciled in the state in which he / she had their permanent home and where he / she intended to remain living indefinitely. Where there is doubt as to the deceased’s domicile, a court will need to make a ruling on the issue, and you should get legal advice from an expert lawyer. Click here for more information.

If you fail to file your application within the time limit, your application will not be heard without the court first providing its ‘leave’ or permission for the application to proceed. If the court refuses to allow the application to be filed out-of-time, then unfortunately you will have lost your opportunity to make a family provision claim under the Act.

You should obtain legal advice about a potential claim and have a solicitor represent you as you will need to go to court. Your lawyer can provide you with initial advice on the likely court ruling and obtain and provide evidence on your behalf in the court proceedings.

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