A potential claim against the estate will only arise if:

a) The deceased died whilst domiciled in the State in which the law applies;
b) You make the claim within a certain period of time from the date of the granting of the Letters of Administration. This time period is usually between six (6) and nine (9) months, although in NSW the time limit expires 12 months from the date of death;
c) You are eligible to make a claim against the estate; and
d) 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 his permanent home and where he / she intended to remain living indefinitely. If there is any dispute as to the deceased’s domicile, a court will need to make a ruling on the issue.

It is very important that a claim against the estate is lodged in court within the prescribed time period.

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

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

The post Can the rules of intestacy be contested by a step-child? appeared first on Wills & Inheritance HQ.

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 usually not binding on the trustee of the superannuation fund and is merely a declaration of the contributor’s wishes.

Although the trustee of the 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:

a)      What the fund member wanted and who was nominated by the member to receive the benefit; and

b)      Who had a financial reliance on the member when he / she died.

If the deceased did not nominate a third party to receive the pension benefits, the trustee may have to weigh up your potential entitlement against others such as the deceased’s biological children, siblings or parents.

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. If no satisfactory internal investigation is conducted, you may be able to take your complaint to the Ombudsman. Your lawyer can assist you in liaising and negotiating with the trustee of the fund and Ombudsman.

Usually, a trustee must distribute the superannuation fund within a certain period of time which is usually 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 fund will be given to the deceased’s administrator for distribution with the residuary estate.

As any right to payment from a superannuation fund is closely related to your other rights against the estate, get advice on all of the issues at once.

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.

Choose a lawyer who has a wealth of experience in estate claims and in protecting inheritance rights.

The post Will I receive a share of my step-parent’s superannuation fund appeared first on Wills & Inheritance HQ.

A court may recognise your interest in the property and make an order that your step-parent held the property, or a share of the property, “on trust” for you.

You may also have a claim if your step-parent lead you to believe or encouraged you to believe that you would inherit their property after their death. However, to be successful  in a claim of this kind you must be able to prove that you suffered detriment, meaning loss or damage as a result of the deceased’s conduct towards you, in such a way that it would be unfair for the deceased to change his / her mind. In such a situation, the court could act to prevent the property being dealt with without your rights or interests being recognised first.

As discussed above, if you were successful in a family provision claim, the court could order that the deceased’s house or the deceased’s share in that house could be transferred to you.

These claims may be a valuable alternative if you are unable to contest division of the Estate or your rights are weak.  However, they will only be available if you contributed to the acquisition or maintenance of the deceased step-parent’s house.

These are complex areas of law and you are strongly recommended to obtain legal advice.

The post What if I’ve helped to pay the mortgage of the deceased’s house or led to believe that I would inherit it? appeared first on Wills & Inheritance HQ.

This means such financial provision that is reasonable in all of the circumstances of the case and sufficient for your maintenance. This would be an amount that is sufficient to enable you to live comfortably and decently according to the standard of living that you have become accustomed to during the deceased’s lifetime.

It is insufficient to simply show that you would like some financial assistance or that it is not fair that you did not receive anything from the Estate.

The court will examine the entire circumstances of each case and will weigh up the following factors:

• Your financial resources and needs including your earning capacity, financial obligations and debts, the standard of living and the extent to which the deceased contributed to that standard;
• The manner in which you were being or might expect to be educated or trained;
• Whether the deceased had assumed responsibility for your maintenance and if so to what extent and duration. It will also be considered whether there is or was another person financially responsible for you i.e. your biological parent;
• The size and nature of the estate; and
• Any physical or mental disability of you or other beneficiary.

The court must ultimately decide whether the fact that you did not receive a share of the estate on intestacy was unreasonable.

The court will endeavour to reach a decision which is fair to all parties involved and a balance must be struck between your claim, the beneficiaries who receive the Estate under the rules of intestacy (who may include your step-siblings) or any other claimants who commence a family provision claim.

If the court considers that an order should be made in your favour, this order can be for a lump sum payment, periodical payment or for the transfer of property such as the deceased’s house. An order can only be made from the net Estate of the deceased.  If some of the Estate has already been distributed to beneficiaries, the court has power to recover these assets for the purposes of making an order in your favour.

A competent lawyer can assess the strength 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.

The post What does a step-child need to show to be successful in a family provision claim? appeared first on Wills & Inheritance HQ.

If you were treated as a child of the family of the deceased, you may be an eligible claimant. It is usually necessary for you to establish that the deceased expressly or impliedly assumed the position of a parent towards you in a relationship that contained all of the usual parental privileges and responsibilities. A mere display of affection, kindness or hospitality will not be enough to meet these requirements.

A court will look at all of the circumstances of your relationship with your step-parent such as the closeness of your relationship, what care the step-parent provided for you, whether you visited one another frequently and enjoyed joint holidays, whether you cared for your step-parent in any illness prior to their death or whether your step-parent entrusted you with their confidences and financial affairs.

Normally, a step-child would need to have lived with their step-parent for a period of time in order for them to be eligible.

It can be difficult to prove that you were treated as a child of the family and the above situation does not apply in all States, so you should be advised on your position by an expert lawyer.

Dependant?

You may also be eligible if the deceased made substantial financial and other contributions to you in money or money’s worth immediately before their death.

In this situation, your relationship with the deceased must have been one of dependency and you would need to show that there was a pattern of substantial contributions, or maintenance, rather than sporadic one off payments.

An expert lawyer should be able to give you advice, right there on the phone, as to whether you meet the requirements of an ‘eligible claimant’.

The post Is a step-child eligible to make a family provision claim? appeared first on Wills & Inheritance HQ.

a) The married spouse, civil partner or unmarried partner;
b) Children or grandchildren;
c) Parents;
d) Siblings of the whole blood or their children or grandchildren;
e) Siblings of the half blood or the children or grandchildren;
f) Grandparents;
g) Aunts and uncles of the whole blood or their children or grandchildren;
h) Aunts and uncles of the half blood or their children or grandchildren.

A step-child is not considered to fall within one of the above groups and therefore does not have an automatic right to receive part of the Estate.

To find out more about how the rules of intestacy operate, click here for an over-view. 

The post Is a step-child entitled to receive anything from the estate under the rules of intestacy? appeared first on Wills & Inheritance HQ.

There are strict rules about who can apply to be the Administrator. The following people are eligible to apply and are usually eligible only in this order of priority:

a) he married partner, civil partner or unmarried partner of the deceased;
b) A child over 18 of the deceased, or the children’s guardian if the children are minors;
c) A grandchild over 18 of the deceased;
d) A parent;
e) A sibling;
f)  A nephew or niece; and
g) Another blood relative or other person appointed by a court

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