What is a Family Provision Claim?

In South Australia, if you believe you have been left out of a deceased person’s Will or have not received adequate provision for your maintenance, education, or advancement in life, you may have the right to make a Family Provision Claim against the estate.

To do so, you must meet the relevant eligibility requirements in the Succession Act 2023 (SA), which governs these claims from 1 January 2025.

Who Can Make a Family Provision Claim?

Under the Succession Act 2023 (SA), the following individuals may be eligible to claim from a deceased person’s estate:

The deceased’s spouse;
The deceased’s domestic partner;
The deceased’s former spouse;
The deceased’s former domestic partner;
The deceased’s child;
The deceased’s stepchild;
The deceased’s grandchild;
The deceased’s parents; and
The deceased’s sibling.

Conditions for Applicants

Former Spouse or Domestic Partner

You may only be eligible if the Court is satisfied that there was no binding property settlement or Court order made between you and the deceased before their death.

Step-Child

If you are the deceased’s stepchild, the Court will consider:

Whether you are vulnerable or have a disability;
Whether you were financially dependent on the deceased; or
Whether you or your parent contributed to the maintenance of the deceased

If you are under 18 and were wholly or partly supported by the deceased before their death, you may also be eligible to make a claim.

Grandchild

A grandchild may claim only if:

Their parent (who is the deceased’s child) died before the deceased; or
The grandchild was wholly or partly maintained by the deceased before death.

Parent

A parent may claim only if:

They cared for or supported the deceased during their lifetime or before entering residential care; or
They were financially supported by the deceased before death.

Sibling

A sibling may claim only if they cared for or supported the deceased during their lifetime or before the deceased entered residential care.

When Can a Family Provision Claim Be Made?

You must lodge a Family Provision Claim within six months of the date of issuance of the Grant of Probate or Letters of Administration.

In some cases, the Court may allow a late application if the estate has not yet been fully distributed. It is strongly recommended to lodge a claim as soon as possible after probate (or letters of administration) is granted and before the estate is distributed.

Are Administrators Liable After Distribution?

If you are the executor or administrator of an estate and you have lawfully distributed the estate before a Family Provision Claim is made, you will not be personally liable to the claimant.

However, it is important to wait until the period for claims to be made has passed before distributing the estate, or seek legal advice beforehand.

It is also prudent to advertise in a local newspaper of your intention to distribute and calling for all creditors, beneficiaries, and other persons having claims to send full particulars and proof of claims to you.

Contact Us

For more information about Family Provision Claims, contact us at Bambrick Legal today. We offer a free, no-obligation 30-min consultation for all enquiries.