Left out of a will?

Left out of a will? All jurisdictions in Australia provide statutory rights for eligible persons to contest a will, or distribution of an intestate estate if they can show that the proposed distribution does not adequately provide for their proper maintenance, support, education or advancement in life. If such a claim is successful, the Court can order an adjustment to the terms of the will (or distribution on intestacy) to make adequate provision for the claimant.

In Western Australia, the Family Provision Act 1972 (WA) (the “Family Provision Act”) sets out the right to make a claim of this nature.

A claim under the Family Provision Act is different from challenging the validity of a will which might arise in circumstances such as fraud or forgery, lack of mental capacity of the will-maker, or undue influence. Rather, a Family Provision Act claim is based on community expectations that a will-maker will take care of certain members of his or her family when they pass away.

Eligibility to make a claim

An eligible person under the Family Provision Act generally includes:

  • a spouse or de facto partner;
  • a person receiving or entitled to receive maintenance from the deceased (at the date of death) as a former spouse or de facto partner;
  • a child of the deceased;
  • a grandchild of the deceased, in specified circumstances;
  • a stepchild of the deceased, in specified circumstances; and
  • a parent of the deceased.

A family provision claim must be made within six months from the grant of probate or letters of administration. The Court has the discretion to extend this timeframe, however, a separate application for leave (i.e., permission) to commence the claim is required.

What must a claimant prove in a claim under the Family Provision Act?

A claimant must prove that he or she has been left without adequate provision for his or her proper maintenance, education and advancement in life.

A claim may be made because the claimant was completely left out of the will or that, in light of the claimant’s financial needs, the distribution proposed is insufficient to support those needs.

What is “adequate provision” varies depending on the claimant’s personal circumstances. Certain categories of eligible persons may face higher thresholds than others. For example, the expectation that spouses should provide for each other generally places a widow’s needs ahead of other interested parties. However, all cases will be individually assessed and balanced with the needs of the claimant and the competing needs of other beneficiaries.

Factors to be considered

The Court takes into consideration the entire circumstances of the case and wieghs factors such as the value of the estate, the competing financial needs of the other beneficiaries, the financial resources and earning capacity of the claimant and the liability of a third party to support him or her.

The Court looks at the will (if any) and evidence regarding the deceased’s obligations and intentions with respect to the claimant, the character and conduct of the claimant, and the nature and length of his or her relationship with the deceased. The claimant’s age, health, physical or mental capacity may also be relevant.

Financial and non-financial contributions made by the claimant to the property or the welfare of a deceased person or his or her family, are also important.

Settling a claim

Mediation is usually compulsory before a Family Provision Act claim proceeds to hearing. Settlement out of Court is preferable, particularly when it appears obvious that a claim is justified, and the estate assets can meet that claim.

There are many reasons why a person may have been left out of, or insufficiently provided for, under a will. An out-of-court settlement is likely to assist in preserving estate assets and avoiding the stress and costs of litigation.

Conclusion

Family provision claims are complex with many factors taken into consideration. Legal advice should always be sought, and quickly, particularly given the strict time limits for making claims, the eligibility criteria, and the multitude of factors the Court must consider in these cases.

We can advise beneficiaries as to their eligibility to bring a Family Provision Act claim, or provide advice and assistance to executors and administrators to appropriately respond to a claim.

If you or someone you know wants more information or needs help or advice, please don’t hesitate to contact us.

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