One of the most common ways for a Will or deceased Estate to be contested is through a Family Provision Application.
It is 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 a Family Provision Application?
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;
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 involve 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 if you’re challenging a Will?
Making a Family Provision Application is not an easy process and is something that you should discuss with a lawyer in detail. If you are considering making or responding to a Family Provision Application you need expert advice.
Strict time limits apply.
Contact our Wills and Estates team today if you’re considering challenging a Will or would like more information on Estate litigation.