Contesting a Will – Part Two

Inadequate provision for proper maintenance, education or advancement in life

By Johanna Woodland

There was a time when it seemed like all a person had to do to successfully contest a Will and obtain a family provision order, was show that they qualified for and needed the funds. Recently, the Courts have made a point of cautioning against any one broad brush approach and instead favour looking at each application on a case by case basis. Discover below who are eligible persons for a family provision claim, as well as the other factors the Court considers when assessing a family provision claim.

Only certain people are eligible to make a family provision claim application with the Court requesting that the deceased estate provides adequately for proper maintenance, education or advancement in life. For a list of eligible persons, see Part One of our Contesting a Will blog series.

Adequate provision for the proper maintenance, education or advancement in life

However, being an eligible person is just the first hurdle. The Court considers not only whether adequate provision for the proper maintenance, education or advancement in life has been made – so have they been left anything and what do they need – but also whether it is proper or the Court ought to make an order which disturbs the Will of the deceased.

The Court can take into account factors including but not limited to:

• the relationship between the applicant and the deceased,
• any obligations or responsibilities owed by the deceased to the applicant, other applicants or any beneficiary,
• the nature and extent of the deceased’s estate,
• the financial resources (including earning capacity) and financial needs of the applicant, other applicants or any beneficiary,
• the financial circumstances of anyone cohabiting with the applicant,
• any physical, intellectual or mental disability of the applicant, other applicants or any beneficiary,
• any contribution (whether financial or otherwise) by the applicant to the estate of the deceased or to the welfare of the deceased or the deceased’s family,
• any provision made for the applicant by the deceased,
• any evidence of the testamentary intentions of the deceased,
• whether the applicant was being maintained by the deceased and to what extent,
• whether any other person is liable to support the applicant,
• the character and conduct of the applicant before and after the date of the death of the deceased,
• the conduct of any other person before and after the date of the death of the deceased,
• any relevant Aboriginal or Torres Strait Islander customary law,
• any other matter the Court considers relevant.

But what if we haven’t spoken to each other in 20 years?

Cases where an estranged child is left out of a Will are sadly appearing to be more common. The Court looks at the whole of the circumstances including the relationship between the applicant and the deceased, and at whose instigation the estrangement has occurred. Was there any hostility? Were there attempts to reconcile? The question of the relevance of estrangement is a fact-finding exercise which can be assisted by outside evidence of the parties’ relationship over the years. The Court may also consider whether the community would expect that the deceased ought to have made provision for the applicant, or if the community would consider that the deceased was entitled to make no such provision. Estrangement is not a determinative factor, but can have weight on the outcome of any application.

Trusted legal support for your family provision claim

Whether you wish to make a claim or prevent a claim from being made, you should obtain independent legal advice before taking further steps. The strict timelines and quick resolution of most estates means that getting legal advice as soon as possible is essential. Our experienced Wills and estates team has the knowledge to help you plan the best way forward.

Stay tuned for Part Three of this series, where we will look at some examples of successful and unsuccessful family provision claims.

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The material included in this website is produced by O’Hearn Lawyers Pty Limited.  It is designed and intended for general information purposes only.  The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.  You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.