Can family members contest a Will?

The law places a moral obligation upon those creating a Will to provide for the maintenance and support of their spouses/partners and children in order to acknowledge that they were an important part of the deceased’s life.

If an eligible family member is not adequately provided for in a Will, they can apply under the Family Protection Act for provision to be made for them from the deceased’s estate. This applies whether the deceased passed away with a Will or without a Will (intestate).

Who can make a claim?

Claims are restricted to family members of the deceased. Family members who are entitled to make a claim include:

•          Spouses and civil union partners;
•          De facto partners living with the deceased at their date of death;
•          Children and grandchildren;
•          Stepchildren and parents of the deceased, in some limited circumstances.

Why would someone make a claim?

If the deceased did not make adequate provision in their Will for a family member for their proper maintenance and support, the family member may make an application to the Court.

The Court views what is adequate maintenance and support widely. Therefore, maintenance and support includes not just financial assistance, but also sustaining and providing comfort, recognition of belonging to the deceased’s family, and recognition of being an important part of the deceased’s life.

What does the Court consider?

When considering whether to make further provision from a Will, the Court will look at the following factors:

•          The moral duty the deceased owed to their family members when they passed away;
•          The size of the estate;
•          The strength of any competing claims; and
•          Whether there was an estrangement and who caused the estrangement.

If a successful claim is made, the Court may make provision for the claimant from the deceased’s Will.  Any provision made will only be to the extent necessary to repair the breach of duty and does not amount to rewriting the Will. There is no presumption of equal division.

An example of a successful claim against an estate is a recent case where the son and granddaughter of the deceased applied for further provision because they were not adequately provided for. The deceased left the majority of her estate to charity, approximately one third to her son, and nothing to her granddaughter.

The Court allowed the claim. The son was awarded approximately half of the estate because he was an integral part of the family, he cared for the deceased after her husband passed away, and assisted her financially. The award was made in the son’s favour because the Court found that the deceased’s moral duty to him was breached because the Will did not recognise his contributions.

Additionally, to recognise the granddaughter as part of the family and to provide for her future needs and stability, the Court made an award of $100,000 in her favour due to the size of the estate and her lack of significant assets.

It pays to get advice from a professional experienced in the area as they can be complex to prove and there are time limits on making claims.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Gianna Menzies