You will need to be able to prove that your spouse/civil partner/unmarried partner failed to make reasonable financial provision for you in his/her Will.
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.