Claiming against a Deceased Estate

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Claiming against a Deceased Estate

Claiming against a Deceased Estate

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Interesting Fact

Stieg Larsson, the Swedish crime novelist who wrote the best-selling trilogy, The Girl with the Dragon Tattoo, The Girl Who Played with Fire and The Girl Who Kicked the Hornets’ Nest died suddenly of a heart attack in 2004. He died without a will leaving behind his de facto partner, Eva Gabrielsson. As they were not married, Swedish law dictated that Larsson’s estate be distributed to his father and brother. Gabrielsson, Larson’s lifelong partner of 32 years received nothing. They were never married as Larson wanted to keep their relationship and address a secret to safeguard their personal safety. Larsson devoted most of his career to opposing right wing extremists in Sweden including neo-Nazis. He was being monitored by right wing groups who called for his death. Larsson’s family later granted Gabrielsson ownership of the couple’s apartment but not the rights and earnings from Larsson’s successful novels.

Unlike Swedish inheritance law, Eva Gabrielsson as a de facto partner would have been entitled to a share of Larsson’s intestate estate under Australian law.   Furthermore, as a de facto partner, she could also make a claim under Australian family law provisions for a larger share of his estate.

Your Question

My father has passed away without a will.  I just learnt that under laws of intestacy, I am only entitled to an equal share of the balance two-thirds of my father’s estate with my other siblings.  My father in his lifetime had given substantial sums of money to help my siblings but not to me.  I also have greater medical needs compared to my siblings.  Can I make a claim for a larger share of the estate?

My de facto spouse has passed away without a will.   Her children from an earlier marriage refuse to give me a share of the estate.  They contend that I was merely her good friend but not a de facto spouse.   Can make a claim for a share of the estate?

The Law

When a person dies without a Will, the deceased is said to have died “intestacy” and the beneficiaries are determined by law.   Section 14 of the Administration Act 1903 (WA) sets out the entitlements of family members in intestate estates.  See article on Applying for Letters of Administration for examples of entitlements under the Administration Act 1903 (WA).

If you feel that your entitlement under the law is inadequate in the circumstances of your case, you can make an inheritance claim or what is known in legal terms as a “family provision claim” provided you fall within the criteria set out under the Family Provision Act 1972 (WA).

In order to launch a family provision claim, you need to fall within the category of “eligible persons”.  The following are “eligible persons” under section 7 of the Family Provision Act 1972 (WA) who are entitled to make an inheritance claim:-

  • a spouse or de facto partner of the deceased person;
  • a person who was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased;
  • a child of the deceased living at the date of the deceased’s death, or born within 10 months after the deceased’s death;
  • a parent of the deceased.
  • a grandchild of the deceased: –
    • who was maintained by the deceased immediately before the deceased’s death; or
    • who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or
    • who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased;
  • a stepchild of the deceased who was maintained or entitled to be maintained by the deceased immediately before the deceased’s death;
  • a stepchild of the deceased, if:-
    • the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
    • the value of that property, at the time of the parent’s death, is greater than the prescribed amount which at the current date is $460,000;

If you are an eligible person, your next step is to prove to the Court that the deceased had failed to make proper and adequate provision from the estate for your maintenance, support, education or advancement in life.  The Court may, at its discretion, make a provision for you out of the estate of the deceased as the Court thinks fit

The time limit to make a claim is 6 months from the date of the grant of letters of administration.

A de facto spouse is entitled to a share of the intestate estate.  Under Section 15 of the Administration Act 1903 (WA), if the deceased dies leaving a de facto partner but no husband or wife, then where the de facto partner and the deceased lived as a de facto couple for at least 2 years, the de facto partner is entitled to the intestate property similar to the share a husband or wife would have been entitled to under the law.

Section 15 also provides that a de facto partner is entitled to a share of the estate if the deceased at the time of his death had left behind both a married spouse and a de factor partner.

If you are not recognised as a de facto partner by the administrator of an intestate estate, you can commence legal proceedings against the estate to prove you are a de facto partner and therefor entitled to a share of the deceased estate.    In deciding whether two persons were living together as de facto partners, the Court may take into account the following indicators set out in Section 13A(2) of the Interpretation Act:-

  • the length of the relationship between them;
  • whether the 2 persons have resided together;
  • the nature and extent of common residence;
  • whether there is, or has been, a sexual relationship between them;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property (including property they owned individually);
  • the degree of mutual commitment by them to a shared life;
  • whether they care for and support children;
  • the reputation, the public aspects, of the relationship between them.

Under the law, a de facto relationship can exist notwithstanding that either of the persons is legally married to someone else or in another de facto relationship.

Matters for Consideration

To make a family provision claim, you must prove to the Court that:-

  • you are an “eligible person”; and
  • the deceased had failed to make adequate provision for your proper maintenance, support, education or advancement in life.  

What is “adequate provision” is a subjective matter and the Court assessing the claim would take into account all the circumstances of the case including:-

  • the financial circumstances of the claimant and the beneficiaries under the laws of intestacy;
  • the size of the estate of the deceased;
  • the expectation of the community;
  • the relationship of the parties;
  • the duty of the deceased to provide for the claimant.

If you are an “eligible person” and can prove that the deceased did not provide you adequately, you have a potential claim for provision out of the estate of the deceased.

Appointment

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What Is The Legal Help Project?

The Legal Help Project is an outreach initiative of Robertson Hayles Lawyers providing affordable initial legal advice to the community in areas of the law impacting on the individual. Robertson Hayles Lawyers is a legal practice based in Perth with more than 50 years of service to the Western Australian community.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.



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