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Family Provision Claim contesting a Will

By: Formbys Lawyers 25 November 2021 no comments

Family Provision Claim contesting a Will

What is a family provision claim or estate inheritance?

Family provision claims are made when an eligible person claims the deceased did not make adequate provision for them in a Will.

Family provision claims are sometimes referred to as, contesting a Will.

Why would you need to contest a Will?

We all know and it is unfortunate, family relationships can become strained or have difficult periods of ups and downs.

It is not uncommon for disputes or disagreements to arise that can result in a member of the family being left out of a Will and for that member to feel they are not adequately provided for by the Will.

In Western Australia on satisfaction of the requirement of the Family Provision Act 1972 the Court may make a different provision for a dependent than that made by the deceased in their Will.

The Act provides for a claim on the Estate being made by an eligible person. The class includes:

the deceased persons spouse or de-facto partner;
children; or
parents of the deceased

In certain cases, stepchildren, grandchildren, former spouses and former de facto partners can make a claim. If a claim is made, it is up to the court to decide if the Will (or if no Will, the law dealing with intestacy) makes adequate provision for the claimant. If it doesn’t, the court may order that provision (or a different provision) be made out of the estate.

What do you need to make a claim?

The person making a claim, must show the deceased had a duty to provide for them, this is not just showing that it is not fair that the deceased did not leave them anything. The person making the claim must prove the Will does not provide adequately for the welfare/maintenance, support, education and advancement in life of the dependent making the claim.

The Claimant must provide evidence of their financial position, needs and circumstances along with the relationship between the deceased and the Claimant.

Other matters that may effect the application include:

The size and nature of the deceased’s estate;

Any service rendered by the Claimant to the deceased;

The totality of the relationships between the Claimant and the deceased;

Any dependant children in the Claimant’s care;

The co-operation and support given by the Claimant in the conduct of the deceased’s business and affairs.

Further, the deceased person must have lived in Western Australia and died leaving assets in the state. (They can also have assets outside of Western Australia).

Sometimes families find it hard to agree on financial matters

When can a claim be made?

A claim must be made within 6 months of the grant of Probate or letters of administration.

The grant of Probate is the proving of the Will in the Supreme Court, which is usually granted to the Executor appointed by the Will provided there are no questions regarding the validity of the Will.

It is important not to delay seeking legal advice about your potential claim as a Claimant, except in special circumstances you have only 6 months to bring the claim from the date of the grant of Probate by the Supreme Court.

What if a Will is invalid?

If a Will is invalid, it may result in the intended beneficiaries receiving nothing and the distribution taking longer and therefore further costs incurred. The distribution of the deceased’s estate will be dealt with under the laws of intestacy, as provided by the Administration Act 1903 (WA)

A Will is invalid if the person making the Will:

Lacked mental capacity to make it;
Was unduly influenced or made to sign/draft the Will in a particular way as a result of duress;
Did not approve its content, or
the maker of the Will

As you can see, there is a lot more to making a claim on an Estate than just lodging documents. There are many considerations that must be looked at.

Is your Will drafted effectively to limit or reduce the chances of a claim being made on your estate?

Formbys Lawyers has been assisting Western Australia families for over 40 years.

To make an appointment with Harry Formby call our office 08 9354 0300 or email us with details of your query.

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