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Family Provision Act allows Wills to be contested

Succession Amendment (Family Provision) ACT 2008

 

This new Act restates most of the old Family Provision Act 1982 allows certain people to contest a deceased estate where that person (the claimant) considers the deceased has not made adequate provision for the claimant either during the deceased’s life or upon their death, by the Will or the law on intestacy for the proper maintenance education or advancement in life.

 

Who can contest your Estate

 

A claim can be brought by:

  • Your husband/wife, de facto or partner;
  • Your children (includes ex‑nuptial and adopted);
  • Your former spouse;
  • A grandchild or a person who has been a member of your household and has been partially or wholly dependent on you;
  • A person living with you in a close personal relationship at the time of your death.

 

Unless the claim is brought by a spouse, de facto or children, the claimant must show evidence which will convince the court that the claimant was such a person who should have been included in the Will.

 

Matters the Court must consider

 

The law requires the court to consider a number of matters in hearing these claims:

  • The relationship between the applicant and the deceased;
  • The extent of any obligations or responsibilities owed by the deceased to the applicant;
  • The nature and extent of the deceased’s property;
  • The financial resources and financial needs of the applicant;
  • The financial circumstances of any person cohabiting with the applicant;
  • The physical, intellectual or mental disability of the applicant;
  • The appliant’s age;
  • What contribution the applicant made to the deceased;
  • Any previous provision made by the deceased for the applicant;
  • Evidence of the testamenary intention of the deceased;
  • The extent of any dependency by the applicant on the deceased;
  • Other financial support for the applicant;
  • The character and conduct of the applicant.

 

Time for bringing a claim

 

A person has 12 months from the date of death to bring a claim.

 

Compulsory Mediation

 

All matters involving these disputes will be referred to the court mediation system to attempt to resolve the matters before a court hearing.

 

Orders

Where a claim is successful, the court can order a:

  • Lump sum payment;
  • Periodic payment from the estate;
  • Specific estate asset;
  • Life interest in a property or income from an investment;
  • Or any other orders.

 

Legal Costs

 

The Executor’s costs are paid from the estate. In most cases the claimant’s costs will also be paid from the estate.

 

How you can avoid a claim

 

Before you make your Will you should discuss with a Lawyer the possibility of a claim being made against your estate. This will arise in cases such as: second marriage, children being omitted from your Will etc. Your Will can be drafted to minimise the possibility of a claim.

 

You can keep notes with your Will to explain the reasons why you have made your Will in that way. For further advice and assistance in relation to a Family Provision claim contact James Kelly on 9570 7844.

 

* This information is of a general nature and is not a substitute for proper legal advice.