Contesting a Will
The family provision legislation is significant in that it
imposes real restrictions on testamentary freedom, where provision for
family members is considered inadequate. In these circumstances, an
otherwise valid will granted probate can be subject to alternative
orders of the Supreme Court, designed to rectify the lack of provision.
An understanding of the reach of these provisions is essential for
estate planners. For some clients, it will be important to plan to
prevent a successful family provision claim.
Alternatively, it may be that some clients, who have been
left without adequate provision on the death of a person who has made an
inadequate will, or who has died intestate, need information on how to
make a claim. Legal advice is necessary here, but general information
may be relevant to determine whether such a claim might be possible. The
relevant legislation is specific to each State and Territory, but there
are common elements to all the regimes.
By and large, the family provision legislation throughout
Australia is relatively uniform. Essentially, each of the States and
Territories confer powers on the court to make an order for further
provision out of the estate of a deceased person if the provisions of
the deceased’s will, or the intestacy laws of the relevant State, fail
to make adequate provision for the property maintenance and support of
an eligible person.
At present, it is only in New South Wales that the family
provision legislation extends to “notional estate”, validly disposed of
prior to death. However, the move towards uniform succession laws in
Australian jurisdictions mean similar provisions are being considered
for other jurisdictions.
In all States, the spouse and children of the deceased are
eligible applicants.
In New South Wales, those who can commence proceedings for
provision include:
-
A spouse (includes a de facto spouse) and a person living in
a domestic relationship (including a member of a same-sex couple).
-
Child of the deceased.
-
Former spouse of the deceased.
-
Other dependent persons (for example, a financial dependant)
who is a grandchild or was a member of the same household.
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