Challenging a Will – Family Provision Claim

Challenge a Will – Family Provision Claim

The law allows certain people to challenge a will with a family provision claim if they have been left out of the will or have not received an adequate gift under the will. The Succession Act 2006 – Chapter 3 sets out the list of people who may make a claim against the estate or will and the circumstances in which they can make a claim.

If you have been left out of a Will or are defending a family provision claim, contact us now for a no-obligation discussion about your matter.

Information on other types of will disputes can be found on our Will Disputes page.

Who can challenge a Will with a family provision claim?

The Succession Act 2006 sets out at section 57, a list of people, called ‘Eligible Persons’ who may make a claim:

• the spouse of the deceased person
• a person who was in a de facto relationship with the deceased person
• a child of the deceased person
• a former spouse of the deceased person
• a grandchild of the deceased who was at any time wholly or partly dependent on the deceased
• a person who was at any time a member of the same household as the deceased and wholly or partly dependant on the deceased person
• a person who was living in a close personal relationship with the deceased person

In what circumstances can you challenge a Will with a family provision claim?

The Court may make a family provision order, generally, an order that the person making the claim is entitled to more of the deceased’s estate if the Court considers that the Eligible Persons has not received an adequate amount from the estate for their proper maintenance, education or advancement in life. If the Eligible Person is not a spouse, de facto spouse or child of the deceased persons, the Court must also consider all the circumstances and decide that there are factors that warrant the making of the claim.

What is the time limit for making a family provision claim?

A family provision claim must be made within 12 months from the death of the willmaker.

In special circumstances, the Court may extend the time for making a family provision claim beyond the 12 month deadline. The decision to extend the deadline is in the discretion of the Court and the person making the claim will need to show sufficient cause as to why the claim was not made within 12 month period.

If the 12 month deadline is approaching, you should immediately contact a lawyer to commence your claim in order to eliminate any dispute as to whether the Cout should extend the time for your claim.

What matters will the Court consider when challenging a Will with a family provision claim?

The Court may consider any matter that it considers relevant to the family provision claim but the Succession Act 2006 brings specific attention to some matters including:

• any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
• the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
• the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as the notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, and in existence when the application is being considered,
• the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
• if the applicant is cohabiting with another person—the financial circumstances of the other person,
• any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
• the age of the applicant when the application is being considered,
• any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
• any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
• any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
• whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
• whether any other person is liable to support the applicant,
• the character and conduct of the applicant before and after the date of the death of the deceased person,
• the conduct of any other person before and after the date of the death of the deceased person,
• any relevant Aboriginal or Torres Strait Islander customary law.

If you want more advice on challenging a will with a family provision claim or defending a claim, contact our experienced will dispute lawyers.