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:
- Spouse, including de-facto spouse;
- Children, including step children;
- 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:
- Does the Will fail to make “adequate provision” for the proper maintenance and support of the applicant; and
- If so, what provision should be made for the applicant?
Factors a Court considers
The Court will consider other various factors, including:
- Whether adequate provision has been made out of the estate;
- The size of the estate;
- How the distribution was effected under the Will;
- The applicant’s financial position;
- The relationship between the applicant and the deceased;
- The needs and claims of the applicant;
- 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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