a)      Either party was habitually resident in the foreign country;

b)      Either party was domiciled in the foreign country; or

c)      Either party was a national of that country.

You can check on the status of your marriage: Click here for more information.

It can be very difficult for a family provision claim made against a former spouse’s estate to succeed especially where the parties have gone their own way and were financially dependent.

If a court order was made for the division of the matrimonial property while the deceased was alive, it will usually be difficult for the ex-spouse to make a successful Family Provision Act, and the court will take the terms of any property settlement into account when making a decision as to whether an Award should also be made from the estate.

A court may make an order excluding each former spouse from making a claim against one another’s estate.

However, an order may be made if a prior court made an order for the deceased spouse to make ongoing maintenance payments to the claimant, if the deceased did not disclose the true nature and extent of his / her assets at the time of the agreement or legal proceedings or where the deceased had not complied with the terms of a matrimonial property order.

Courts are hesitant to interfere with agreements reached by the parties and orders made by the Courts on the termination of a marriage or civil partnership.

The post What if my spouse and I have been divorced/broken up for years – am I able to make a claim against my former spouse’s estate? appeared first on Wills & Inheritance HQ.

You can verify the status of your divorce by contacting the court in which your application was filed here.

You may also be entitled to take a share of the estate under the rules of intestacy if the deceased did not have a Will and if you are not legally divorced.

The post What happens if my spouse/civil partner and I have just separated? What if we have not finished dividing our assets in our divorce? appeared first on Wills & Inheritance HQ.

It is possible that the validity of your pre-nuptial agreement may be disputed by another claimant under the law. In this situation, a court must determine whether your pre-nuptial agreement is valid and complies with all necessary legal requirements.

Ask our family lawyer for information on pre-nuptial agreements. Click here for more information.

The post What if we had a pre-nuptial agreement? Does this mean anything? appeared first on Wills & Inheritance HQ.

The way in which the courts decide this question vary between the States so this is a guide to the relevant  issues, not a statement of the law: again ask a Lawyer.

Other Factors: all Claimants (spouse/civil partner/unmarried partner)

Generally the Court will make an Award if adequate provision has not been made for you: the tests vary between states so get advice.

In deciding the matter, the court will take into account all of the circumstances of the case and importantly, the needs of the surviving spouse/civil partner/unmarried partner. The court must balance the needs, and potentially competing claims, of the surviving spouse/civil partner/unmarried partner, the beneficiaries and any other claimants.

Some of the factors the court will take into account are:

a)  The age of the surviving spouse/civil partner/unmarried partner;

b)  The length of the marriage or civil partnership or the time spent living together as unmarried partners;

c)   Any contribution made by the surviving spouse/civil partner/unmarried partner to the welfare of the family of the deceased including any contribution made by looking after the home or caring for the family;

d)  The financial resources and needs of the surviving spouse/civil partner/unmarried partner including earning capacity, financial obligations, the standard of living of the claimant and the extent to which the deceased contributed to that standard;

e)   The size and nature of the estate; and

f)     Any physical or mental disability of the surviving spouse/civil partner/unmarried partner or other beneficiary.

If the claimant is successful, the court can order that a lump sum payment, periodical payments or a transfer of property be made to him / her. This is typically called an “Award”.

An award can only be made from the net estate of the deceased, but if any assets had been transferred out of the estate after death but before the court made its order, the court can order the assets to be returned.

In NSW, if the deceased disposed of assets been up 6 years before death up until the time they died, the courts may retrieve those assets if it is necessary to do so, to fund any Award made to a claimant.

You should contact a specialised solicitor, one who has a wealth of experience in helping people to make a family provision claim. A specialist lawyer will assess the likelihood of the success of your claim and assist you in making the decision to proceed with your claim or not.  They should confidently and assertively ensure that your rights are protected, and ensure that any assets that are already distributed are recovered for the benefit of the estate and to satisfy your claim. Click here for more information.

The post What do I need to show to be successful in a family provision claim? appeared first on Wills & Inheritance HQ.

In most cases, the claimant must show that:

a)      He / she was living in the same household as the deceased;

b)      That they had lived together as a couple in a domestic relationship, not just sharing a house;

c)       That they had lived together for a period of two (2) or more years immediately predating the date when the deceased died.

If circumstances meant that there was a temporary separation at the date of death (e.g. working overseas, sickness etc.), the courts will usually take a common sense and realistic approach in working out whether this meant a  real separation, or whether or not the relationship has come to an end.

An unmarried partner and Intestacy: No Will

If a person dies intestate (without a Will) their civil partner is entitled to take under the Intestacy Rules.

You should make inquiries to see if a Will exists: Click here for more information.

For some couples, serious and complex legal problems may arise and you should consult a solicitor to see how they can be resolved. Click here for more information.

The post Who is considered to be an ‘unmarried partner’? appeared first on Wills & Inheritance HQ.

a)      Spouse/civil partner of the deceased;

b)      A former spouse or civil partner of the deceased who has not remarried or entered into a new civil partnership; or

c)       An unmarried partner.

A spouse/civil partner must show that their marriage or civil partnership to the deceased was ongoing at the date of the deceased’s death, and this is usually be done by supplying a certificate of marriage or civil partnership.

An unmarried partner will need to provide documentary evidence and witness statements to demonstrate the existence of their relationship with the deceased, in order to prove that they are eligible.

You should be able to get a preliminary check of your eligibility from a lawyer, over the phone.

Other categories of claimants may be entitled, so if in doubt get specific information on the State you are interested in: click

International Marriages and Relationships

If you were married overseas, in order to be eligible to make a family provision claim, you must establish a valid marriage. Sometimes you may need to provide evidence from an expert in the law of the country of your marriage to prove that your marriage was valid in law.

Where two (2) people of the same sex go through a marriage ceremony overseas in a country which recognises such a marriage, the law will treat that union as a civil partnership.

If the validity of a marriage or civil partnership is challenged, then a declaration will need to be obtained from a court as to the status of the marriage or civil partnership. You will need a family law solicitor to assist you in such a situation. Click here for more information.

If you are in a civil partnership or same-sex marriage from another country, you need to see whether this relationship is recognised in the various Australian  States. Remember, if you fail to qualify for one category, you may still qualify under another category.  So ask a specialist lawyer. Click here for more information.

The post What does ‘eligible claimant’ mean? appeared first on Wills & Inheritance HQ.

Each State has its own laws, and generally  the laws of the State where the deceased lived and had their main assets will apply.

The claim you make when “contesting a Will” is generally called a “Family Provision claim”.

Generally, people are legally entitled to leave their assets to whomever they wish on their death, but each person has a moral obligation to provide for those people who are dependent on him / her.  The Family Provision laws enable people to contest/challenge a will if the deceased failed in this duty.

A Family Provision claim can only be made against the estate 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 six (6) and nine (9) months.  As some States measure the time limit from the date of death, do not delay;

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

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

Usually a person’s domicile is clear: it is the State where the deceased had their permanent home and where he / she intended to remain living on a permanent or indefinite basis.  If there are complex issues, a court may be required to decide any disputes as to the deceased’s domicile.

A claim against the Estate must be lodged within the time period specified by the law. This is very important and there may be serious consequences if this does not occur.

If you fail to commence your clam in time, you will need the ‘leave’ or permission of the court to proceed with a clam that was made out of time. If the court refuses, the claimant will have lost the chance to make a family provision claim.

To find out whether probate has been granted you can contact a solicitor or a probate searcher.

If you are trying to find out the whereabouts of a Will ask the deceased person’s solicitor, or ask for a Will search of the courts.  Click here for more information. Professional Will searchers may also be able to help.

The post What if I have been left out of the Will? appeared first on Wills & Inheritance HQ.