Common Questions About Family Provision

If a loved one died and you have been left out of the will, you have a right to contest it. A family provision claim is a legal process wherein a close-relation of a deceased (spouse, children, etc.) can appeal that provision (or further provision) be made from the estate.

If you find yourself in that situation, here are some questions you might have.

  1. How does the court determine need?

The court attempts to identify if the maintenance, education and advancement in life of an applicant was provided for in the terms of the will. Then the court will look into all of their current and future needs to determine if an alteration is needed to be made to the will.

  1. Can a stepchild make a claim?

Stepchildren are not prohibited from making a claim for family provision. What must be established is that the stepchild was, in fact, became a dependent of the deceased at one point in time.

  1. Can grandchildren make a claim?

Grandchildren do not have an automatic right to claim on their grandparents estate but they are not prohibited from doing so. What has to be established is their dependency on the deceased.

  1. How does the court determine dependency?

Financial assistance is the most common form of dependency but the entire relationship will be examined. This means that emotional dependency will be taken into consideration as well.

  1. Can I claim for family provision because my uncle died?

Nieces and nephews do not have an automatic right to claim on their uncle or aunts estate but they are not prohibited from doing so. They just need to establish dependency.

  1. Everything was left to charity, is there anything I can do?

A will  can stipulate that everything in the estate should be given to charity. If a claim for family provision is valid, however, the court may decide to distribute it amongst the dependents or between the dependents and the charities.

  1. How do I make sure that I get what I am entitled to?

For instance, when the deceased leaves their estate to a parent or a colleague, the court may find issue with this and will wish to distribute it amongst  all the dependents. This is a case for a lawyer to help plead the case to the court.

Hopefully, these answers can help you to navigate through intricate rules involved when it comes to claims for family provision.