In the event of intestacy, very different rules apply to a child, compared to a step child.

A step-child cannot share in the estate under the rules of intestacy or dispute the rules of intestacy, but may be able to and contest the Will and make a Family Provision Claim against the estate.

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The contributor to a superannuation fund is usually entitled to nominate a third party to receive the benefits due after the contributor’s death. This nomination is often not binding on the trustee of the superannuation fund and is merely a declaration of the contributor’s wishes.

Although the trustee of the superannuation fund has full discretion to distribute the benefit to whomever they feel is most deserving, in practice the trustee will usually honour the nomination.

A trustee will usually consider two (2) key factors in deciding how to distribute the benefit:

• What the contributor wanted and who was nominated by the member to receive the benefit; and
• Who had a financial reliance on the member when he/she died.

Each superannuation fund will have different internal rules as to how a benefit is to be paid out and how such a decision can be contested. If you feel that the trustee of the fund has wrongly distributed the benefit, you should contact the trustee of the fund as soon as possible.

A trustee of a superannuation fund must usually distribute the pension scheme within two (2) years of the date of the deceased’s death.

If no nomination was made by the deceased and no satisfactory beneficiary can be found, the superannuation benefit will usually be given to the deceased’s executor for distribution with the remainder of the estate. Click here for more information.

Binding Nominations

However, especially in the case of the larger public funds, it is possible for a contributor to make a binding nomination and then the trustee is bound to distribute the benefits in accordance with the contributor’s wishes. There are special rules applicable to binding nominations, and so you should consider legal advice if the issue is important to you.

For most funds except for self-managed superannuation funds, it is possible to apply to the Superannuation Complaints Tribunal if you are unsatisfied with the decision of the trustee.  The complaint itself is a legal document and you may be best to get legal advice to give your complaint the best chance of a successful decision for you.

Self-Managed Superannuation Funds

If the superannuation fund is a self-managed (private) fund the rules working out how a fund should be distributed can be much more complicated, and you may have more rights than you think, especially if the trustee has not acted in accordance with the rules.

A lawyer can assist you in liaising and negotiating with the trustee of any type of fund and assisting with any complaint.  Select one who is well experienced in superannuation funds.

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It is usually insufficient for the claimant to simply claim that he/she simply needs financial assistance or that it is not fair that his/her parent did not leave them anything in their Will.

The entire circumstances of each case will be examined by the court and the following are some of the factors that will be considered:

a) The financial resources and needs of the claimant including earning capacity, financial obligations and debts, the standard of living of the claimant and the extent to which the deceased contributed to the claimant’s life style during the deceased’s life;

b) The manner in which the claimant was being or might expect to be educated or trained;

c) In the case of a step-child, whether the deceased had assumed responsibility for the step-child’s maintenance and if so to what extent and duration. Also, whether there is another who is financially responsible for the step-child;

d) The size and nature of the estate; and

e)  Any physical or mental disability of the claimant or other beneficiary.

Sometimes a person will write an explanation in their Will as to why he/she has not made any provision for their child or step-child. The court will consider any such explanation, but will weigh it against all the other factors which the court is required to take into account.

If the court considers that an order should be made in the claimant’s favour, this order can be for a lump sum payment, periodical payment or for the transfer of property. Regardless of what the order is, it can only be made from the net estate of the deceased.  If some of the estate has already been distributed the court has power to recover these assets for the purposes of making an order in the claimant’s favour.

There is no simple rule of fairness. You cannot just expect to be treated equally with your brothers and sisters. You must prove that the court should make an award in your favour.

Ask a lawyer for a preliminary assessment of the strength of your claim.  This will assist you in making the decision as to whether to proceed with your claim. Find a lawyer who will confidently and assertively ensure that your rights are protected.  This information should be available to you, right there, on the phone. Click here for more information.

The post What must be shown to prove that reasonable financial provision has not been made? appeared first on Wills & Inheritance HQ.

In some States, a step-child of the deceased may be an eligible claimant , but this is not an automatic right, and the law varies between States.

In order to qualify, a step-child will usually need to prove that he / she was either treated as a child of the family in relation to the marriage of the deceased or civil partnership, dependant on the deceased at the date of death, or had lived with the deceased and had been part of the same household

In some situations the person may not qualify if their natural parent died before the step-parent, of if they had divorced them before the step-parent  had died.

A grandchild of the deceased could also be considered to be an eligible claimant where the grandparent assumed primary and indefinite responsibility of the grandchild and cared for and treated the grandchild as his/her own.

For step-children or grandchildren, it is usually necessary to establish that the deceased expressly or impliedly assumed the position of a parent towards them in a relationship that contained all of the usual parental joys and responsibilities.  Living together is an important facet of this type of relationship.

If the step-child or grandchild was financially dependent upon the deceased at the time of the deceased’s death, then this will strengthen the claim. Otherwise, the claim by the step-child or the grandchild may be too weak.

Obtain preliminary advice as to whether you are an ‘eligible claimant’, as soon as you decide to investigate your rights.  A solicitor can provide this advice on the phone.

A person is not a step-child of the deceased if their parent’s partner was not married to or in a civil partnership with the deceased.  This person will also not be able to take a share of the estate under the rules of intestacy and may not be entitled to make a Family Provision Claim.

Click here for important information on who is eligible to make a claim in the State where the deceased lived and had most of their assets.

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If a claimant fails to file their application within the time limit, their application will not be heard without the court first providing ‘leave’ or permission for the application to proceed. If the court rules that an application filed out-of-time is not permitted to proceed due to the time delay, then unfortunately the claimant will have lost their opportunity to make a Family Provision Claim under the Act.

For information on how to apply for probate, click here.

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A person has the freedom to dispose of his/her property on death as he/she wishes via their Will.

However the law ensures that a person maintains their moral obligation to provide for those who are dependent on him/her.

The fact that a child may have received a gift under the Will does not make that child ineligible to make a Family Provision Claim.

A potential claim against the estate will only arise if:

a) The deceased died whilst domiciled in the State where the law applies;

b) The person making the claim does so within a certain period of time from the date of the granting of probate or letters of administration. This is usually between three (3) and nine (9) months, depending on the State concerned.  Sometimes the limitation date runs from the date of death so do not delay and get advice as soon as you know that you may be wanting to make a claim;

c) The child is eligible to make a claim against the estate; and

d) The child can prove that the deceased failed to make a reasonable financial provision for him/her in the Will.

In most cases, 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 his 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.

The post What if no provision is made in the Will for a child of the deceased or if it is much smaller than everyone else’s? appeared first on Wills & Inheritance HQ.

But what happens if the surviving spouse remarries and changes his/her Will so that the new spouse will inherit their entire estate rather than his/her children? Is the surviving spouse able to do this?

A surviving spouse is permitted to change their mirror Will at any time.

However they cannot do this if he/she entered into a ‘mutual’ Will with their deceased spouse. A mutual Will is one that contains an agreement that neither spouse shall revoke or change their Wills. These types of Wills have been compared to a contractual agreement.

When the first spouse dies without having changed his/her Will, if there was a mutual Will, then  a binding obligation arises against the surviving spouse not to contest the Will.  If the surviving spouse changes his/her Will in these circumstances, a claim may be brought on the surviving spouse’s death to uphold the first Will.

This does not apply to a mirror Will. A surviving spouse is free to alter a mirror Will at any time. In practice it seems that most identical Wills are mirror Wills, and not mutual Wills.

CWPL is able to provide you with advice about whether a Will is considered to be a ‘mutual Will’, and assist you in making a claim if a mutual Will has been changed.

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Many parents will write the names of their children in their Wills as the beneficiaries, or recipients of their estate. Some however will simply state that their estate is to be divided amongst “my children”.

Any bequest or gift in a Will which is expressed to be for the “children” of the deceased will usually mean:

• any biological children of the deceased
• a child conceived prior to the deceased’s death and subsequently born alive
• an adopted child
• a child who is considered the legal child of the deceased as  a result of assisted reproductive techniques (IVF). Click here for more information.
• a child who is the legal child of the deceased as a result of a parental order obtained in relation to a surrogacy arrangement. Click here for more information.

Step-children

Step-children of the deceased are usually not considered by law to be a “child” of the deceased for the purposes of the Will and cannot take anything that is left to the “children” of the deceased.

However, a step-child may be able to make a claim against the their Will step-parent’s estate for an Award in some circumstances. A solicitor can assist you to do this.  This claim is referred to as a Family Provision Claim, and it involves contesting the Will.   Click here for more information.

Adoption

The effect of adoption is that the adopted child is treated in law as if he/she were the biological child of the adopter(s). An adoption that occurred overseas must comply with the laws of applicable State to be legally recognised.

You may need to obtain legal advice on inter-country adoptions to determine your status.

An adopted child will not be able to make a claim against his/her natural and biological relative’s estate and vice versa.  Once a child is “adopted out” to a new parent, they are no longer taken by law to still be a child of their biological parent, and cannot contest the will of their biological parent by virtue of their relationship.

However, if the child has re-established contact with their biological parent before the death and had become dependent on the biological parent, it might be possible to make another claim under a different category.

IVF

The laws regarding children born of assisted reproduction techniques (IVF) have changed a number of times over the years and may vary from State to State. Usually,  where a woman was married or in a civil partnership at the time of the technique, her husband or civil partner will be treated as the father or second parent of the child unless the husband or civil partner can prove that he did not consent to the procedure. The donor of sperm who has consented to its use is not treated as the father of the child.

Surrogacy

The law regarding surrogacy arrangements also varies from State to State and you may need to obtain advice from a lawyer specialising in family law regarding such arrangements.

Usually, the woman who gives birth to a child will, in law, be treated as the child’s mother. The commissioning parents in surrogacy can seek a parental order from the courts which will ensure that the child will be treated as their legal child. Once this has occurred, like adoption, the child will not be able to succeed in a claim against the child’s natural and biological relative’s, or birth mother’s, estate and vice versa.

There are a number of obligations that must be satisfied before this can occur and you should contact a lawyer specialising in family law if you have any questions about a surrogacy arrangement.

Gifts in Wills

Usually, a gift in the Will that is stated to be given to “all my children” is easy to define. The gift will be divided amongst all of the people who fall within the definition of “child” at the date of the deceased’s death.  Any child who was born after the deceased dies will not fall within the definition unless the child had been conceived prior to the deceased’s death.

If a child is under the age of 18 at the time of the deceased’s death, they cannot receive the gift until they turn 18, and usually their funds will be held on trust for them or invested in terms of the will until then.

If the will states that a child must wait until they are a different age (eg 25 years old) before they can take, then of course they need to wait until then.

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