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Contesting a Will – Family Provision Applications

One of the most common ways for a Will or deceased estate to be contested is through a Family Provision Application. It is therefore important for anyone making a Will to keep in mind that the Court is allowed to intervene where a certain person is excluded from a Will. If a family member feels they have been excluded, they can bring a Family Provision Application and “challenge” the Will.

Who can make Family Provision applications?

The following people are entitled to make a claim if they feel they have not been adequately provided for:

  1. Spouse, including de-facto spouse;
  2. Children, including step children;
  3. Dependants.

However, just because a person is eligible to make a family provision application does not necessarily mean that they will be successful in their claim.

The legal test

The legal test is found in the case of Singer v Berghouse (No. 2) (1994) 68 ALJR 653. In this case it was determined that the family provision applications involves a two-stage process:

  1. Does the Will fail to make “adequate provision” for the proper maintenance and support of the applicant; and
  2. If so, what provision should be made for the applicant?

Factors a Court considers

The Court will consider other various factors, including:

  1. Whether adequate provision has been made out of the estate;
  2. The size of the estate;
  3. How the distribution was effected under the Will;
  4. The applicant’s financial position;
  5. The relationship between the applicant and the deceased;
  6. The needs and claims of the applicant;
  7. The character or conduct of the applicant.

What to do?

Making a family provision application is not an easy process and is something that you should discuss with a solicitor in detail. If you are considering making or responding to a family provision application please do not hesitate to contact me as there are strict time frames that you will need to abide by.

Also, if you are making a Will and planning on excluding a family member from your Will it is important you leave evidence outlining your reasons for doing so. A lawyer experienced in this area can assist you with this and help reduce the risk of a successful family provision application being made against your Estate.

If you have any questions or concerns regarding the above, please do not hesitate to contact me.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Written by—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now