Contesting a Will – Family Provision Applications

This is a topic that is sure to generate conversation at family get-togethers and backyard barbecues.  The statement “I earned it, I should be able to leave it to whoever I like” is one that is commonly made.

When people think about a will being contested, they think about the court changing the way the estate assets of a decedent are distributed.  In legal jargon, this is called a ‘family provision application’, which may be made even though a will is otherwise valid.  Family provision applications are, however, just one of a number of situations in which wills may be contested, which include:

1. Where the testator (the maker of the will, the deceased) has not made adequate provision for certain family members – family provision applications;
2. Where the formal requirements for making or amending a will have not been met;
3. Where the will does not reflect the testator’s testamentary intentions or not all provisions in a will achieve their purpose;
4. Where the testator did not have testamentary capacity to make the will, that is they did not understand the nature of the document they were executing;
5. Where the testator was subjected to undue influence from another person; and
6. Where there is a will contract where, for example, the testator may have agreed to leave a person a gift in their will in return for that person giving something to the testator, which is an enforceable contract.

Whilst each of the above can result in an application being made to court to either set aside, interpret, correct or enforce a provision in a will, this article will focus on family provision applications.

Family provision applications are becoming more common for two main reasons:

1. People are dying with more assets than they used to in the past, which is a function of people living longer, giving them more time to accrue assets and superannuation, which although generally not an estate asset (an asset that can be gifted by will), is often used to purchase estate assets after retirement; and
2. The increase in the number of blended families, which increases the number of children and grandchildren and also the complexity of family relationships.

The court’s authority to interfere in the distribution of a decedent’s assets derives from statute and each State in Australia has legislated to require a person to make adequate provision for certain family members.  From a historical perspective, this echoes the law going back to Anglo-Saxon times, which provided that on death one third of a man’s (women didn’t own assets) estate would devolve to his wife, another third would devolve to his children and he could distribute the final third as he saw fit.

In Queensland, section 41(1) of the Succession Act 1981 (Qld) relevantly provides:

If a person dies without making adequate provision from their estate for the proper maintenance and support of their spouse, child or dependant, the court may order that provision be made as it sees fit.

Spouses include de facto partners and parties to civil partnerships.

‘Child’ includes any child, stepchild or adopted child of the deceased and also includes adult children.

‘Dependant’ encompasses any person who was being wholly or substantially maintained or supported by decedent, and can include grandchildren and non-relatives.

The factors the court will consider when deciding whether to make a family provision order include:

1. The size of the estate:  the estate may simply not be big enough to make provision from;
2. The means and financial responsibilities of the applicant:  they may not need a provision from the estate;
3. The relationship of the applicant to the deceased:  the applicant may not receive a provision if they have been estranged from the deceased for a long time;
4. Contribution by the applicant to the estate:  such as where the applicant assisted the deceased to accrue their estate;
5. Financial need:  for education, unemployment, illness; and
6. Disentitling conduct:  adultery, desertion, chronic drunkenness.

However, none of the above factors are black and white.  The court has a broad discretion and will investigate the circumstances of each application thoroughly.

In short, if a close family member has passed away and you did not receive an allocation from their estate, where it would normally have been expected that a person in your relationship would have received an allocation, or a better allocation, you should see us now to consider your ability to make a family provision application.

Alternatively, if you an executor of a will and find yourself a respondent to a family provision application, you should also see us as soon as possible so that we can advise you on the appropriate course of action.

If you do think there is a basis for you to make a family provision application, you should act now as there are time limits within which you have to act.

Alternatively, if you are concerned whether your will might be susceptible to a family provision application, you should also see us to discuss steps you might take to reduce the likelihood of this situation occurring.

Marino Law has extensive experience acting for both applicants and respondents to family provision applications, and other estate litigation matters.  Should you require assistance in relation to a family provision application, or other estate litigation matter, please contact one of our highly experienced litigation lawyers.