What is a claim?

Generally, a ‘claim’ in an estate refers to what is called a ‘family provision application’.

This is an application to the Court made by a certain person who considers they have not been adequately provided for in a Will.

Who is an eligible person?

There are three (3) kinds of people who are eligible to make a family provision application in the Succession Act 1981 (Qld).  They are:-

1. the deceased person’s spouse; 
2. the deceased person’s child; or
3. a dependant of the deceased.

Spouse

The Succession Act defines a spouse as a person’s husband or wife, de facto partner, civil partner or dependent former husband or wife or civil partner.

A de facto partner is elaborated on in the Acts Interpretation Act 1954 in s32DA(1) as “one (1) or two (2) persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family”.

To define a genuine domestic basis, is no easy feat. It encompasses a variety of factors, not limited to, but to include some of the following:-

1. the degree of financial dependence or interdependence, and any arrangement for financial support;
2. whether or not a sexual relationship existed; and
3. the reputation and public aspect of their relationship.

A civil partner is a partnership that is registered under the Civil Partnership Act 2011.

Child

The Succession Act defines a child, as any child, stepchild or adopted child of the deceased.

A stepchild is a child of the deceased’s husband or wife, de facto partner, or civil partner. The relationship of a stepchild and stepparent ceases on the following:-

1. divorce of the stepchild’s parent; or
2. the termination of a civil partnership with the stepchild’s parent; or
3. the ending of a de facto relationship between the stepchild’s parent.

It is also important to note that the relationship between the deceased and the stepchild does not end upon the passing of the stepchild’s parent if they were married, in a civil partnership or de facto relationship at the time of the stepchild’s parents passing.

An adopted child is that of a child who was legally adopted by the deceased.

Dependent

A dependent is defined as a person who was being wholly or substantially maintained or supported by the deceased person at the time of their death. When referring to maintained it is strictly in a financial fashion, such as regular payments or the like. A dependant can include the parent of a surviving child under the age of eighteen (18) years who is also a child of the deceased.

As demonstrated above it is crucial to be aware of who could make a claim on your estate. When looking to prepare a Will it is important to plan your estate on a holistic approach and to be aware of who can make a claim on your estate, and who is an eligible person.

If this blog touches on an issue which is present for you, I encourage you to seek legal advice. There are concepts such as ‘what is a genuine domestic relationship’ and ‘who is my child’ which are relevant to your situation and need to be considered before planning your estate and preparing your Will.

Please feel free to contact our team should you have any questions.