On 14 May 2014, the ACT Legislative Assembly amended the Family Provision Act 1969 to reduce the time for making a family provision claim from 12 months to 6 months after the grant of representation.
This means that eligible applicants who want to make a claim against an estate must start proceedings in the Supreme Court no later than 6 months after the date of the Grant of Probate or Letters of Administration.
Before the change, the ACT had the longest period in Australia in which a family provision claim could be commenced. The rationale behind the amendment was to avoid undue delays in the administration and distribution of estates where family provision claims have been threatened by proceedings not commenced. A wise executor should hold off from distributing an estate where there is a risk of a family provision claim until the period for making a claim has expired. This can cause significant hardship for beneficiaries of an estate who must wait to receive their inheritance.
The reduced time period for making a family provision claim attempts to balance the rights of eligible applicants on the one hand, by providing them with sufficient time to seek legal advice and the opportunity to negotiate a settlement without commencing formal legal proceedings, with the rights of beneficiaries on the hand, who are interested in the efficient administration of the estate.
The time periods for making a claim vary significantly between Australian States and Territories. For example, in New South Wales, a family provision claim must be commenced within 12 months from the date of death, irrespective of whether a Grant of Probate or Letters of Administration has issued.
It is important that people who feel that they have been inadequately provided for or who are wondering if they are eligible to make a claim should seek legal advice early and without delay.
Rebecca Tetlow is an Accredited Specialist in Wills and Estate Law (NSW) and a Senior Associate at DDCS Lawyers, 18 Kendall Lane, NewActon, Canberra ACT 2601 and can be contacted on (02) 6212 7600.