To make a claim for family provision you must have been in a certain relationship with the deceased. The most immediately obvious claimants are spouses, de facto spouses and children.
While laws differ in each state, the law will protect a person to whom the deceased owed a moral responsibility. This means each situation is open to interpretation — dependent on circumstance.
The first consideration when disputing a will is establishing your eligibility to do so. Not just anyone can contest a will, you must be a person who was in a certain relationship with the deceased.
The categories of eligibility in each state are:
Queensland:
New South Wales:
Victoria:
NB: if you are unsure which state applies see: Which State Do I Contest the Will in?
An application for a family provision claim needs to be filed within the following timeframes:
Put simply, if you wish to contest a will you’ll need to file an application in court no later than the specified date. To do that, you first need to get legal advice to determine if you have a claim. Then, appoint a solicitor to commence proceedings in court.
An application is considered ‘made’ on the day that it is filed in the Registry. If the date of death is uncertain, the court will determine a reasonable time or date.
If you do not meet this deadline and you have a good reason why, you may be able to convince the court to make an exception. Generally speaking, time limits when challenging wills are strictly applied.
Laws have time limits for good reasons. In this area of law, it is important that deceased estates are administered quickly and efficiently. An estate can’t be fully administered if there is an outstanding family provision claim, which is why anyone who wishes to make a claim needs to do so promptly. Once the time period has lapsed, an executor can feel free to finalise his or her duties and distribute the estate. At the same time, a beneficiary can assume that there will be no challenge to his or her interests.
Exceptions to the rule exist in order to prevent a claim that otherwise has merit from being statute barred too quickly.
When determining if you can effectively challenge a will you need to acquire general information about what is in the estate. This assists in determining whether you are able to compete with other beneficiaries and ultimately whether your will dispute claim will be successful.
Once you have established that a) you are eligible to make a family provision claim and b) you are within the time limits, the next step in challenging a will is to obtain clarity about the terms of the will and the assets and liabilities of the estate.
Have you seen the will? Do you have a copy? Who is the executor named in it? Who are the other beneficiaries? Has the executor made an application for a grant of probate?
Also, what are the assets and liabilities of the estate and what are their nature? Was there property, superannuation, savings? Did the deceased own a business, shares, other investments? Were the assets held solely or jointly? Did he or she have debts?
In a claim for family provision it is ultimately the executor’s duty to disclose these details. But in the early stages it is still helpful if you have at least a rough idea of what you’re dealing with. If you have been out of touch with the deceased and genuinely have no idea as to what the estate comprises often a letter from your solicitor to the estate solicitor is sufficient to obtain some particulars. Call us on 1800 720 211 if we can help you do this.
If you haven’t seen a copy of the will it is important that you obtain one. The first step is to simply ask the executor for a copy. If he or she won’t oblige there are other steps that can be taken, see: How Do I Get a Copy of the Will?
If you don’t know who the executor is, consider asking close friends and relatives and the deceased’s lawyer. If you are still unable to find a will you need to consider: What if There is No Will?
It is important to know who the deceased left his or her estate to, whether there are any specific bequests and any other general information that could turn out to be relevant to your claim for family provision. Importantly, you need to know who your competitors are. That is, who is the person or persons that the deceased has favoured over you in their will?
Many of our will dispute clients have a rough idea how much money a deceased person had but few know for sure. Some know nothing at all. Finding out exactly what is in the estate isn’t always straightforward but the first step in finding out is to write to the executor’s solicitors. Call us on 1800 720 211 if we can help you with this step.
If you know you are not in the will, you know who is in the will and you know roughly how much money is in the estate the next step in considering a will dispute claim is your need for provision.
You must be able to show that you ‘need’ the money and this need can be relative to that of your competitors. Generally speaking a person with a mortgage or some other debt will have ‘need’, but this is to be considered in light of the size of the estate and its competitors.
If you have established that you are eligible to bring a family provision claim, you are within the limitation period and you have not been adequately provided for in the will your next need to ask what it is your needs are.
The words the courts use is whether ‘adequate provision for the proper maintenance, education or advancement in life’ has been provided in the will of the deceased person. If the answer to this question is ‘no’, the court then asks what it is that the claimant needs. In other words, what should the deceased have given you and why?
What the layperson would call ‘need’ the court calls ‘provision’. It asks whether or not the deceased person ‘provided’ for you and, if so, whether that provision could be considered adequate in all the circumstances.
Being able to demonstrate a need for provision is an essential element of your claim. If you own your home, as well as an investment property, have plenty of superannuation, savings in the bank, no debts, earn a good income and you and your family are all in good health then, unless the estate is large and you have little competition, it is unlikely you will be able to successfully contest a will. You might be eligible to contest, but there are other factors to consider when weighing up whether or not you would be successful in doing so.
While many people are angry that they have been left out a will for emotional or family reasons, or principle, the court will only consider changing the wishes of a deceased person if they have left behind someone who can demonstrate that they need the money. The law does not correct hurt feelings or a sense of wrong. It does not compensate for past wrongs. The court simply considers whether or not the provision made was, in all the circumstances, adequate for that person’s proper maintenance and advancement in life.
Now, you may say “doesn’t everyone need money?” Well, most of us do, yes. But not all. And it’s relative. For example, you may have a mortgage but a good job and you’re in good health. Your sister on the other hand may have a mortgage but she’s a single mother earning a low income and your deceased parent only left $75,000 behind. This is where a delicate balancing exercise arises.
In most cases if you have a mortgage or some other debt you can demonstrate that you have need, but you also have to consider the needs of your competitors. How do you do that? Well if you know roughly what their financial position is you can estimate the strength of a potential family provision claim by weighing up what the will says, what is in the estate, what your competitors need and what you need.
This is the part where an experienced lawyer is particularly important. Call us on 1800 720 211 (or email) if you have any questions about your need for provision. An experienced will dispute lawyer will answer the phone.
Consider who are the other beneficiaries named in the will? What relationship did they have with the deceased? How does this information affect your will dispute claim? These are questions to be addressed to determine your position.
Once you have established that:
… the next step is to take a look at what you’re up against.
Considering the competing claims upon the estate is a crucial part of the process because the court needs to weigh up the wishes of the deceased person versus the needs of any eligible persons he or she has failed to adequately provide for.
Who are your competitors? That is, who is named as a beneficiary in the will and who, if anyone, is also bringing a claim for family provision against the estate?
Of your competitors, do they have a stronger, lesser or equal claim upon the estate? If a long term spouse or de facto of the deceased is in an equal financial position to a child of the deceased, the claim of a long-term partner will generally be greater than that of a child. But all cases are different.
Once you have identified any competitors, you need to ask what your financial circumstances are in relation to theirs. Do they need the money just as much as you do? Do they have a mortgage or do they own their own home? Do they have a good job? Does their partner earn a good income? Are they in good health?
Depending on the circumstances, which vary greatly, this step takes specialist knowledge. At this stage, if you have checked all of the other boxes, you should obtain specialised advice.