Contesting a Will and Estate Disputes

Family Provision: was adequate provision made for you in the Will?

Have you been cut out of a family member or loved one’s Will?  Perhaps you didn’t get the size of inheritance you were hoping for?  Unfortunately, sometimes not everyone is satisfied with the terms of the deceased’s last Will.  If you have been excluded from a Will or are to receive an inheritance that does not meet your proper maintenance and support, then you may have standing to bring a Family Provision Application.

Each state and territory in Australia has legislation that gives the Court discretion to make an order for further provision from an estate if the beneficiary’s entitlement does not meet the costs of their proper maintenance and support.  Commonly known as Contesting a Will, the proper legal term for a claim for further provision from an estate is a “Family Provision Application”.

There are limited eligible applicants who have standing to bring a Family Provision Application, and there are strict time limits which apply to bring the Application.  MMLaw can assist in assessing your possible claim and your prospects of success.  This requires consideration of a variety of issues, including whether you are eligible to bring an Application under the requirements of the legislation, what inheritance you are expecting to receive (if any), your needs, the size of the estate, your relationship with the deceased, and any other competing claims against the estate.

Making a Claim for provision?

There are limited people who have standing to bring a Family Provision Application against an estate.  The only eligible claimants are:

  1. spouse of the deceased: this may be a husband, wife, de facto spouse, registered partner, or a dependant former husband, wife or registered partner;
  2. child of the deceased: this includes a biological child, stepchild or adopted child of the deceased;
  3. dependant of the deceased: any person who was being wholly or substantially maintained or supported by the deceased at the time of the deceased’s death. The dependant must be a parent of the deceased, or a parent of a surviving minor child of the deceased, or a person under the age of 18 years.

You will be considered a de facto spouse of the deceased if, at the time of death, you and the deceased had been living together on a genuine domestic basis for the two years prior to the deceased’s death.

A child of the deceased includes a biological child, step-child and adopted child.  A person is considered a step-child of the deceased if they are the child of a spouse married to the deceased, and the relationship between the spouse and the deceased has not terminated by divorce.

A ‘dependant’ is any person who was being wholly or substantially maintained or supported by the deceased at the time of the person’s death being either a parent of that deceased person; or the parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years.

Applications of this nature are usually settled without the necessity of a Court hearing. The rules of the Court assist with the timely management of the matter by providing a timetable for the conduct of the matter which includes compulsory mediation.

The costs of the Applicant are normally paid out of the Estate but this is a discretionary matter for the Court and there are no guarantees. A careful assessment of the merits of the claim are required before commencing a Family Provision Application.

Let MMLaw advise you on the merits of making a claim. Call Christine Matsinger for advice in relation to Contesting a Will.

Defending a Claim?

If a beneficiary is Contesting a Will, the executor or administrator of the estate is obligated to defend the Family Provision Application on behalf of the estate.  This involves considering the merits of the Family Provision Application and the best interests of all beneficiaries under the terms of the Will (if there is one) or the Rules of Intestacy (if the deceased died without leaving a valid Will).

If a Family Provision Application has been made against the estate then there are plenty of opportunities to resolve the claim without proceeding to Court.  In fact, we encourage all clients to resolve Family Provision Applications by negotiation, rather than Court proceedings.  Resolving a claim by negotiation saves the estate the expense of responding to the Application, and also saves the executor/administrator and the beneficiaries a lot of time and stress.

That being said, if the estate and claimant are unable to resolve the Application by negotiation, then the claimant may choose to proceed with bringing their Application in the Court.  This provides the claimant and the estate with a certainty that the Application will be resolved, whether that be in favour of the claimant or the estate.

The costs of the Executor or Administrator of the Estate are normally paid out of the Estate but this is a discretionary matter for the Court and there are no guarantees.  For this reason, it is very important that the progress and negotiation of a Family Provision Application are handled carefully.