A Family Provision Application is often referred to as “challenging a will”. However, it should be noted that a Family Provision Application can be brought whether the deceased left a will or died without a will (referred to as intestate).
What is a Family Provision Application?
A Family Provision Application is an application made by a defined class of persons to the Court seeking further provision from the estate of the deceased.
Who is included in the defined class of persons eligible to bring a Family Provision Application
A Family Provision Application can be made by the spouse, child or dependent of the deceased.
A spouse includes a husband or wife, a de facto partner and a registered partner.
A child includes a biological child, step child or adopted child of the deceased.
A dependent is a person who was wholly or substantially maintained or supported by the deceased who is a parent of the deceased, a parent of a surviving child under the age of 18 years of the deceased, or a person under the age of 18 years.
On what grounds can a Family Provision Application be made?
A Family Provision Application is made on the basis that the deceased failed to make ‘adequate provision’ for the applicant’s ‘proper maintenance and support’.
How will a Court determine a Family Provision Application?
The Court has a wide discretion to make orders it thinks fit.
It is worth noting that just because a person is eligible to bring a Family Provision Application does not necessarily mean that they will be successful in their claim.
The Court will consider:
- Whether adequate provision has been made for the applicant’s proper maintenance and support;
- If adequate provision has not been made for the proper maintenance and support of the applicant, the Court, in determining whether further provision from the estate of the deceased should be made to the applicant, may have regard to:
- The size of the estate;
- The relevant provisions of the will;
- The applicant’s relevant circumstances including financial position, age and health;
- The totality of the relationship between the applicant and the deceased; and
- The circumstances of the other beneficiaries or potential beneficiaries of the estate.
Is there a time limit on filing a Family Provision Application?
Yes. A person who intends to make a Family Provision Application must give notice of their intention to the personal representative of the estate within 6 months from the date of the deceased’s death.
Further, the Family Provision Application must then be filed in Court within 9 months from the date of the deceased’s death.