Challenging a deceased person’s will: family provision claims

If a person is unhappy with what has been left to them in a will, a family provision claim can be made seeking better provision from a deceased person’s estate.

In this article, we look at what a family provision claim is and who can make a claim.

What is a family provision claim?

A claim for family provision is an application made to the court by a person who feels that a deceased person has failed to provide for them properly in their will or that the share left to them is less than what they may have expected or even been promised.

Family provision is statute based and confers on the court a discretionary power to make an order for adequate provision to be made out of a deceased person’s estate for the maintenance of an applicant.

A purely twentieth century concept, family provision overrides the general legal principle that a person has the testamentary freedom to dispose of their property on death as they think fit. Up until the enactment of family provision legislation, this right was seldom interfered with unless the deceased person (or testator) had abused that right.

In a society in which wives were financially dependent on their husbands and adult males were the principal property holders and breadwinners, the first family provision act in New South Wales in 1916 was a reflection of community expectations that a deceased person had a moral duty or obligation to ensure adequate provision had been made for his dependants.

The primary focus of the first Act was the proper maintenance and support of a testator’s wife, husband or children. It addressed situations that occurred in a 1909 New Zealand case (Re Allardice: Allardice v Allardice (1909) 29 NZLR 959), in which a testator (deceased adult male) left a will that favoured his second family and completely cut out his first wife and children.

If successful, in making an order for provision, the court does not rewrite the deceased person’s will so that it is a will that should have or ought to have been made. Further, an order is not meant to right the wrongs in the deceased’s relationship with the applicant or to ensure that there is an overall fair division of a deceased person’s estate. However, the family provision legislation does give the court a discretionary power to discharge a testator’s responsibility to make adequate provision for the proper maintenance of the applicant.

Who can make a family provision application?

Up until 1982, the main focus of family provision legislation was on spouses and children of the deceased. In 1982, applicants eligible to bring a claim were broadened to include not only those entitled automatically on the basis of family ties but those who had cohabited or been dependant on the testator.

Under the current family provision legislation Succession Act (2006) NSW, there are six categories of eligible persons who can make an application.

They are:

  • the spouse of the deceased at the deceased’s date of death;
  • a person living in a de facto relationship with the deceased;
  • children of the deceased (which also includes adopted and ex nuptial children);
  • the former spouse of the deceased;
  • a person who at any time was wholly or partly dependent upon the deceased, either a grandchild of the deceased or who was a member of the deceased’s household; and
  • a person who was living in a close personal relationship with the deceased at the deceased’s time of death.

However, although a person may be eligible to make a family provision claim, it does not necessarily mean an entitlement to provision will be automatic. A person’s relationship with the deceased will not mean that there was a moral duty to provide for that person.

The process for making a claim

As spouses, de facto partners and children are recognised as having an automatic entitlement to make an application on the basis of familial ties, they will have less factors to demonstrate to the court when applying for family provision.

However, those who were members of the deceased’s household or had a close personal relationship with the deceased, and who do not have family ties to the deceased, may have a harder time providing sufficient evidence for a claim for family provision. These applicants need to demonstrate to the court that there are “factors warranting” the making of an order for provision. If unable to meet these factors, the court will not be able to make an order for provision.

When should a claim be made

Any claim for family provision needs to be brought within twelve months from the date of the deceased’s death.

It is possible to bring a claim after the twelve months have elapsed, but the court will need sufficient reasons to extend the time period for making an application.

If you are a person who has been left out of a will, or would simply like further information on family provisions, please contact us today.

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