A snapshot of family provision claims and the court’s power to alter the will made by the deceased

We sometimes read or hear of court cases where the court has allowed a claim made by a family member who has been left out of the last will made by the deceased. What does this mean? How is it possible that the court can interfere with the wishes of the deceased and alter the terms of the will? Who can challenge the will and make a claim for a share of the estate?

Normally, the court will not alter the gifts or terms of the will by the deceased. However, in all Australian states and territories, pursuant to legislation passed by parliament, the court has the power to alter the terms of the will and award a share of the estate to a family member who has been left out of the will. The court can also increase the share made to a family member under the will.  The court’s power to alter the terms of the will is however limited to claims made by only certain family members and only to circumstances where the deceased had failed to make provision for that family member’s future well-being. This type of claim is often referred to as a family provision claim.

The first step is an objective criterion. Does the claimant fall within the category of person entitled to make a family provision claim? In Western Australia, under section 7 of the Family Provision Act 1972 (WA), only the following persons are entitled to make this claim: –

• a spouse or de facto partner of the deceased;
• a former spouse or de facto partner of the deceased who was receiving or entitled to receive maintenance from the deceased;
• a child of the deceased;
• a parent of the deceased; and
• in certain cases, a, grandchild or stepchild of the deceased.

The second step involves a subjective assessment. Under section 6 of the Family Provision Act 1972 (WA), the court must assess and determine whether the deceased failed to make adequate provision for the claimant’s proper maintenance, support, education or advancement in life. In determining this question, all of the circumstances must be considered including the following: –

• the income, assets and liabilities of the claimant and the beneficiaries under the will;
• the financial needs and obligations of these parties;
• the size of the deceased estate;
• the expectation of the community;
• the nature of the relationship of the parties;
• whether the deceased had a duty or obligation to provide for the claimant.

Case law has held that in determining whether the provision made for the claimant in the will is ‘adequate’, it is necessary to consider the totality of the relationship between the claimant and the deceased. This will require an assessment of any sacrifices made or services given by the claimant for the benefit of the deceased, the contributions made by the claimant to building up the deceased’s assets and the conduct of the claimant and the deceased to each other.

The term, “adequate provision” does not mean merely the provision of funds sufficient for the claimant to secure life necessities. It goes beyond mere sufficiency.  The court has found that the assessment of what is “adequate provision” must consider the standard of living that the claimant has and might reasonably expect to have in the future and whether the claimant can satisfy their living requirements from their own resources.

The court’s power to alter the will of the deceased is a discretionary power. There is, therefore a strong element of subjectiveness in the assessment of family provision claims.

A family provision claim must be brought within 6 months from the date when probate was granted by the court.  If the claim is not brought within this time, the claimant must seek permission from the court to commence the claim. The court will only grant this permission if the claimant can show that the claimant will suffer hardship if he or she is not given the opportunity to make this claim outside the period of 6 months from the date of the grant of probate.

Hence, if you think that you have been unfairly left out of a will, you must act without delay and seek legal advice and representation as soon as possible.

If you require advice on your right to make a provision claim, please contact Robertson Hayles Lawyers at 9325  1700 or by email at enquries@robertsonhayles.com

Note

The above content is only intended to provide a general overview of the topic discussed.  It is not intended to be comprehensive, nor does it constitute legal advice.  You should seek legal advice specific to your circumstances before acting or relying on any of the above content.