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Contesting a Will – Family Provision Applications

Author: Chloe

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.