We specialise in inheritance claims in Perth. At Friedman Lurie Singh & D’Angelo only experienced and dedicated lawyers will have conduct of your matter!
Can I Challenge a Gift in a Will?
The general rule is that a testator (i.e., the person who makes the will) is entitled to deal with his/her assets on death as he/she sees fit or if there is no Will the assets are distributed according to the law governing intestacy.
However, in the case of an unfair gift under a Will or under the intestacy rules, in certain circumstances, you may make an application to Court under the Family Provision Act 1972 (“the Act”) to challenge the unfair gift.
What Does the Act do?
The Act empowers the Supreme Court to override the provisions of the deceased’s Will or to make provision where there is no Will so that the Applicant may receive a distribution from an estate after death.
The Court has the power to interfere if it is established that the Will or intestacy rules do not adequately provide for the proper maintenance, support, education or advancement in life of a person to whom the deceased owed a duty to make such provision.
Can Anyone Apply to Court?
No, only “eligible persons” may apply and these are usually those related to or dependent on the deceased:
- surviving widow, widower or de facto partner;
- former spouse or de facto (a person who at the date of death was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner, whether pursuant to an order of any Court, or to an agreement or otherwise);
- any child of the deceased including illegitimate, adopted or an unborn child at the time of the death of the deceased;
- a stepchild of the deceased in certain circumstances;
- grandchildren who at the time of the death of the deceased were being wholly or partly maintained by the deceased or whose parent (the deceased’s child) died before the deceased; and
Is There a Time Limit?
Yes, an application to Court must be made within six (6) months from the Grant of Probate (where there is a Will) or Letters of Administration (if there is no Will). After the six (6) month time limit, an application to Court will first be required to extend the time. Before the Court grants an extension, you have to show that the justice of the case requires an extension.
What are the Requirements of the Act?
To make an application, you would have to satisfy the following requirements:
- the application to the Supreme Court must be made by an “eligible person”;
- the application must be made within six (6) months of the Grant of Probate or Letters of Administration or such other extended time as allowed by the Court;
- only one application can be made by an applicant;
- there must be assets within the Court’s jurisdiction over which an order can be made.
What Assets are Covered by the Act?
The Court may make an order under the Act only in respect of the “net estate of the deceased, being all the property owned by the deceased or payable to his estate on his death”.
This means that the assets are the net assets after all death and testamentary taxes and expenses have been paid.
How Does the Court Decide?
To succeed, you will have to prove your right to a moral claim to provision from the deceased’s estate. A mere relationship to the deceased as an “eligible person” does not give an automatic right to a variation of the Will.
You will have to show that you have been left without adequate provision for your proper maintenance, support, education or advancement in life and that it would have been proper for the deceased person to make provision for you. Proof of a mere need for money is not enough if no moral claim is established. The Court would have to be satisfied that there was a moral claim or a duty on the part of the deceased to you.
This is not defined in the Act and is widely construed to include circumstances of any kind which make it right and proper according to ordinary community standards for the deceased to have made some provision for you.
What will the Court Take into Account?
The Court takes many factors into account including the following (which are not exhaustive):
- size of the estate, its nature and value;
- the age, sex and health of the applicant and other beneficiaries;
- the means possessed by the applicant in his or her own right and the applicant’s financial responsibility;
- the standard of maintenance to which the deceased may have accustomed the applicant;
- promises made by the deceased to the applicant concerning a gift to the applicant by the deceased after death;
- services rendered by the applicant to the deceased particularly those which result in the building up of the assets of the estate;
- the closeness of the relationship between the applicant and the deceased;
- any benefits, by way of education, advancement and suchlike which the deceased may have given the applicant during the deceased’s lifetime;
- the moral duty of the deceased to provide for the eligible person and for other members of the family;
- the effect on the rights of other persons entitled to a share in the deceased’s property;
- the character and conduct of the applicant in relation to the deceased.
Warning to Testators!
Before you make a Will, you should give careful consideration to the effect of the Act because your wishes may be challenged in Court.
Testators are warned to seek legal advice before deciding on the final terms of their Wills.
Costs of the Application
We can advise you on any application under the Act and in respect of any unfair Will.
If an application to Court is required, it is essential that we explain what the requirements are and what the likely cost will be of an application under the Act. We will give you an estimate of the likely costs involved before we undertake any work for you.
Review of Wills
If you have already made a Will but you are not sure whether you have properly taken into account the provisions of the Family Provision Act, you should contact us for advice.
NOTE: Subsequent marriage or divorce nullifies a prior Will.
Why you should Contact Us
We have 5 conveniently located offices in Perth, Jindalee, Joondalup, Rockingham and South Lake to deal with your case. You do not need to come into town to see us! We are in your local area for your convenience!
We have a dedicated team of people who love their involvement in law and providing good quality legal services at a competitive price to members of the public of Western Australia, which we have been doing since 1989.