When making a will it is essential to have your rights and obligations properly explained to you by an experienced lawyer so that you can have confidence that your wishes will be put in place upon death. In this way, the costs associated with litigation and the stress caused to family arising out of disputes, can often be avoided.
The person who makes a will (the testator) has an obligation under the law to provide support and maintenance for certain individuals and classes of individuals. Persons who believe that they have been insufficiently provided for or not provided for at all can bring a claim through the Courts challenging the testator’s wishes.
On 1 January 2015 the law was narrowed as to the classes of individuals who can bring a claim. Claims against estates of persons who died before 1 January 2015 were governed by the previous legislation which allowed for expanded classes of individuals to bring claims. Claims in relation to persons who died on or after 1 January 2015 are governed by the following rules:
Persons eligible
- Spouse or domestic partner at time of death
- Former spouse or former domestic partner
- Registered caring partner
- Child including an adopted child who at the time of death was under eighteen or a full time student aged between eight and twenty five or had a disability
- Adult child of the deceased who was not full time student aged between eighteen and twenty five who does not have a disability
- Step child who at the time of death was under eighteen or a full time student between eighteen and twenty five or had a disability
- Adult step child of the deceased who was not a full time student aged between eighteen and twenty five who does not have a disability
- Assumed child – a person under the age of eighteen or a full time student under the age of twenty five or a child with a disability who for some substantial period during the deceased’s life believed the deceased was a parent and was treated by the deceased as a parent
- Spouse or domestic partner of a child, adopted child, step child or assumed child of the deceased if the child of the deceased died within one year of the deceased’s death
- Grandchild who was wholly or partly dependent on the deceased for proper maintenance and support
- Person who was member of the household at which the deceased was a member at the date of death
Persons not eligible
- Parent, nephews, nieces, siblings, cousins, carers etc can only bring a claim for Family Provision if they qualify as a member of the household or are an assumed child.
The term “dependence” has been traditionally defined.
The Courts power to make provision
The Court must be satisfied of all the following matters before it can make a Family Provision order:
- The applicant is an eligible person
- Dependency where the applicant claims a registered caring partner, a grandchild, a member of the household or the spouse or the domestic partner of a child, adopted child, step child or assumed child of the deceased if the child of the deceased died within a year of the deceased’s death
- At the time of the death the deceased provided for the applicants proper maintenance and support
- The applicant’s entitlements under the Will or intestacy fail to make proper provision for his or her proper maintenance and support
There are various factors the Court must consider in making Family Provision orders including the contents of the will, any evidence of the deceased’s reasons for making the dispositions in the will and any evidence of the deceased’s intentions in relation to providing for the applicant. In addition, there are a range of factors the Court may consider in making a Family Provision order.
In relation to the amount of provision, the Court must take into account certain factors.
There are certain time limits in relation to these matters and so it is very important that you obtain advice in relation to any estate/will dispute claim at the earliest opportunity by contacting a legal practitioner. The procedure involves very formal documentation which must contain certain essential elements.
There have been widespread and sweeping changes to the ability of potential plaintiffs to bring claims, challenging wills and estates. To obtain more details in relation to your entitlements, the likelihood of success in challenging a will (and or alleging undue influence and/or duress) you should contact contact Alan Alpass of this office on (03) 9725 0377.