Family Provision Claims

Whilst the law generally recognises a persons right to have the wishes expressed in their Will honoured, situations may arise where a grossly unfair Will may leave valued members of the family or dependants without any benefits.

In such situations, the law allows eligible persons to contest the Will. This is commonly referred to as a Family Provision Claim. A few examples where a person may have good reason to contest a Will include:

  • Where they have been excluded from the Will of a family member or person of whom they were partially or fully financially dependant;
  • Where greater provision should be made for them from the Will at the expense of other beneficiaries because of their specific financial or health needs including any physical, intellectual or mental disability;
  • Where the relationship with the deceased had changed since the deceased had drafted his or her Will;
  • Where they believe that the deceased did not have mental capacity to understand what he/she was doing when the Will was made;
  • Where they believe the deceased was unduly influenced by another person prior to changing their will and that the Will did not in fact reflect the true wishes of the deceased;
  • Where the Will is grossly unfair.

This is a primary reason why it is a requirement for death notices to be printed in local media such as a newspaper as it lets eligible people know that the person has died and enables them to make enquiries as to the contents of the Will.

The law for contesting a will in most states recognises family members, defacto or same sex partners, step-children or anyone else who can show that they are an eligible person may contest a Will that is unfair.

It is important to note that a Family Provision Claim in New South Wales must be made within (12) months of the deceases date of death. This may vary from State to State in Australia.

Acting for the Estate
The role of the Executor is to carry out the wishes of the Will maker as specified in the Will. This is a position of great trust and must be carried out with care and honesty. The Executor must act in the best interests of the estate and all of the beneficiaries and cannot act in his or her own interests if they are not the same as those of the Estate and the beneficiaries.

Whether a person is indeed entitled to greater provision from a deceased Estate is most often contested by other beneficiaries who stand to loose whatever monies the applicant gains. The appointed Executor of the Estate will be responsible for representing the Estate. This will require the Executor to account for the value of the Estate including all property, shares or monies held or owned by the deceased at the date of their death less any costs incurred in administering the Estate as well as obtaining the evidence from beneficiaries as to their claim against the Estate and the reasons (if any) why greater provision should not be made for the Applicant.

It is imperative that the Executor seek legal advice immediately upon receiving notification of a potential claim against the Estate. The Executor may have an obligation to cease any further distribution of the Estate or may have a conflict which may require them to step down as the Executor.

What if there is no Will?
If there is no Will the next of kin of the deceased usually has to apply to the Supreme Court for a document called "Letters of Administration". This document is the court’s formal approval for someone to administer the estate of the deceased, effectively acting in the same role as an executor, but called an administrator. Approval is usually granted in favour of a family member or another person who has a substantial interest in the estate.

The Estate can be contested in the same way as if there was a Will if a dispute arises as to how the Estate is to be distributed.

Why chose RMB Lawyers?
Whether it is acting for the Executor of the Estate or for an Applicant, at RMB we know the law and will provide you with clear advice on the entitlements of the beneficiaries based on our up to date understanding of the circumstances of the parties and the value of the Estate.


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