As explained in my last post “Where There’s a Will There’s a … Court Case” there are significant changes to the law about who can, and cannot, make a claim for provision out of a deceased estate. Basically the classes of people who can still make such a claim are now restricted to:
- A spouse or domestic partner of the deceased at the time of the deceased’s death;
- A former spouse or domestic partner in a situation where a property settlement was not reached following their separation;
- A child, step child, or adopted child of the deceased who at the time of death was under the age of 18 years, or a fulltime student between the ages of 18 and 25 or who is under a disability;
- A person who believed the deceased was their parent for a substantial period of their life and was treated by the deceased as their natural child an “assumed child”);
- A registered caring partner;
- A grandchild of the deceased who was wholly or partly financially dependant on the deceased ;
- A spouse or domestic partner of a child of the deceased if the child dies within 1 year of the deceased’s deathwho was wholly or partly financially dependant on the deceased ;
- A member of the household of the deceased, or a former member who would have resumed being a member of the household but for the deceased’s death, who was wholly or partly financially dependant on the deceased
- other family mewmbers such as parents, nices, nephews, siblings, cousins, unregistered non-partner carers etc. are only eligible to make a claim if they fall into one of the other above categories, i.e. household member or assumed child.
These changes came into effect on the 1st January 2015 but, and it’s an important “but”, they only apply to the estate’s of people who die on or after this date.
This is important because it means that if you were someone who could have made a claim under the old law against the deceased estate of someone who died before 1st January 2015 then you may still be able to successfully make such a claim provided (I couldn’t bring myself to put in another “but”) you act quickly, because there is a time limit of 6 months from the date that Probate of the Will of deceased is granted within which to file wour application with the Court. So, for example, if the deceased passed away on the 1st. November 2014 then the old Testator’s Family Maintenance (Family Provision) law applies, and if Probate of the deceased’s Will was granted on the 18th December 2014 then anyone who wants to make a claim for provision must file their claim with the Court within 6 months, i.e. by the 18th June 2015. Sometimes the Court will grant extensions of time to make a claim outside the 6 month time limit, but it will only do so in certain circumstances, so it’s best not to have to apply for an extension of time if it can be helped.
Under the old law the classes of people who could make a claim for provision against a deceased estate were those to whom a deceased “had a moral responsibility to make provision”. This could include a spouse and children of a deceased but also others who had a special relationship with the deceased or were in some way financially dependant on the deceased during their life – for example it might include a boyfriend/girlfriend or fiance of the deceased (but who was not in a full blown de facto relationship with the deceased), a non family member who cared for or helped the deceased (but was not their registered carer), or a niece or nephew of the deceased who was being wholly or partly financially assisted by the deceased. Obviously the categories of people who could make a claim under the old law were much wider than they are now under the new law and unfortunately under the new laws these types of people will not be able to make a TFM claim, no matter how deserving their claim may otherwise have been. So if you know of someone in such a situation where the deceased passed away before the 1st January 2015 you should brin gthis to their attention so they can have the merits of their potential claim properly assessed bya qualified lawyer as soon as possible.