What is a Family Provision Act Claim?
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 Supreme 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) 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.
Douglas Cheveralls Lawyers has experience in dealing with a variety of Family Provision Act claims, acting for both an applicant and a respondent (including an executor).
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.
Douglas Cheveralls Lawyers may provide advice about whether you are an eligible applicant, or whether you are defending a claim against an eligible applicant. For more information about specific applicants, see our articles, "A spouse contesting a will" and "De facto relationships and will contests".
Time Limit to Make a Claim
A Family Provision Act 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 permission to commence the claim is required.
Douglas Cheveralls Lawyers may provide advice about when the time limit applies in your particular case, and may search records held by the Supreme Court to determine when the grant of probate or letters of administration was made.
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 Supreme Court takes into consideration the entire circumstances of the case and weighs 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 Supreme 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 Supreme 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.
Please contact us if you would like advice about how to reach a settlement, or how to record the settlement (usually in a document called a deed of family arrangement).
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 Supreme Court must consider in these cases.
Douglas Cheveralls Lawyers 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.