Do you believe that you have not been adequately provided for in a deceased individual’s will? If prior to their passing you were reliant on their support, you may have grounds to make a dependency claim.
In dependency cases, the claimant feels as though they have not received adequate provision and, as such, contests the will on the grounds that the testator failed to provide them with sufficient maintenance and support.
Once probate has been granted and the will is found to be valid, you have a period of six months to contest the deceased individuals’ division of their estate. As such, if you believe you may have a dependency claim against an estate, the best time to act is now.
For expert assistance in assessing the merit of your case, Hentys can help. We’re experienced in will contesting cases, and can provide you with the advice required to decide whether your dependency claim is viable in court.
Who Is Eligible To Make A Dependency Claim?
If you wish to make a dependency claim, it’s important to firstly establish whether you’re legally considered to be an eligible person.
The Provision for Family and Dependents Act 1975 states that to be recognised as an eligible person, the claimant must be one of the following:
- The testator’s surviving spouse or civil partner;
- A former spouse of the deceased, given that they have no remarried or entered into a new civil relationship;
- An individual who the deceased was in a de facto relationship with;
- A child of the testator;
- Any person who is not a child of the deceased, but was treated as though they were;
- A person who was dependent on the deceased at their time of passing, either wholly or partially, or anyone who received regular maintenance from the testator.
Once having established that you’re eligible to contest the deceased individual’s will by making a dependency claim, it’s then, of course, essential to ensure that your claim is one of merit. Being an eligible person doesn’t guarantee that you will have a strong case, there are numerous factors that the court will also need to take into consideration when reaching a final decision.
Key Factors The Court Will Consider
There are various key factors that will be deliberated by the court when determining the outcome of a dependency claim. These include:
- Whether there was, in fact, reasonable financial provision left to you by the deceased;
- The current and future needs of you, any other applicants and the beneficiaries of the estate;
- Both the size and nature of the deceased individuals’ estate;
- Any physical or mental disability of you, any other applicants and the estates’ beneficiaries;
- Any other matter that may have influenced the testators’ distribution of their estate, for instance, your conduct or that of any other involved individual.
In some cases where the applicant and testator are divorced, certain occurrences relevant to their separation and the duration of their partnership are key factors that will likely be taken into account.
What Are The Potential Outcomes?
If you’re considering making a dependency claim, there are a number of outcomes that could potentially occur at the conclusion of your case. It’s important to fully understand what you wish to get out of contesting the will and how realistic your desired result is given the circumstances.
If the applicant’s claim is deemed unsuccessful, they will receive no provision from the estate and will be directly responsible for the payment of their own legal fees. In addition to this, the individual may be required to also cover the costs endured by the executor when defending the testator’s estate.
Prior to contesting a will, many individuals find it beneficial to seek legal counsel from an industry professional who is experienced in dependency cases and, as such, can advise them as to whether their claim would be worth pursuing. This can, in turn, help to avoid the costs that may otherwise be experienced by the claimant if they were to pursue a case with little merit.
Alternatively if an individual’s claim is successful they will receive provision, of the amount determined by the court, with the estate covering their standard costs. In such instances, the applicant is found to have been reliant on the testator for some form of financial or material support. Because of this, the court grants the claimant adequate and proper provision of the deceased’s estate.
Contact With Us Today
For professional advice and assistance in determining the merit of your case, please do not hesitate to get in touch with Hentys today. Our expert team of Estate Lawyers are dedicated to getting you the outcome you deserve, and will provide you with valuable guidance during every stage of your Estate Dispute.
Alternatively, if you have any queries, our Estate Dispute FAQs are a great place to start.