A claim can be made under the Inheritance (Family Provision) Act, 1972 (“the Act”) (known as an Inheritance Claim) on the basis that the Will maker failed to provide (or to adequately provide) for a family member in their Will where they had a moral obligation to do so.

Section 6 of the Act sets out who is entitled to make an Inheritance Claim. Certain people are entitled to make a Claim simply as a result of their relationship with the deceased. These are:

  1. the spouse of the deceased;
  2. a former spouse, being someone who is divorced from the deceased;
  3. the domestic partner of the deceased, being the partner (regardless of gender) in a close, personal, but unmarried relationship (de facto);
  4. a child of the deceased; and
  5. a grandchild of the deceased.

We are often asked what can be done to avoid an Inheritance Claim.  You cannot take away a person’s statutory right to make a Claim against your estate. However, the strength of a potential Claim will depend on the size of the estate, the nature of the claimant’s relationship with the deceased, the respective claims of the other parties involved and the financial circumstances of the claimant.

There are certain family members who have a right to make an Inheritance Claim provided that they meet certain additional criteria to that described above. Namely:

  1. a step-child of the deceased (whether a child of their spouse or domestic partner) can make a Claim provided they:
    • were maintained wholly or partly by the deceased immediately prior to their death; or
    • were legally entitled to be maintained by the deceased immediately prior to their death;
  2. the parents of the deceased can make a Claim if they can show that they cared for, or contributed to the maintenance of, the deceased person during their lifetime; and
  3. a brother or sister of the deceased can make a Claim if they can show that they cared for, or contributed to the maintenance of, the deceased person during their lifetime.

The basis of any Inheritance Claim is that the deceased had a moral obligation to provide for the claimant. If this is the case, then it must be shown that the provision made in the Will (if any) was not adequate for the claimant’s proper maintenance, education or advancement in life.

It is important to note that Inheritance claims are subject to strict time limits. So, if you are concerned, be sure to get legal advice as soon as possible or you may be barred from making a claim.

For further information (or if you need to make a Will) please contact Kristina Piper on 8362 6400 or email Kristina Piper.  Join our mailing list to receive updates and advice on current issues.