If you feel you have been left out of a will or insufficiently provided for by a deceased estate, you may have grounds for contesting a will by making a Family Provision Application.
Who can make a family provision application?
You may have grounds to make a family provision application contesting a will if you are the deceased’s:
- spouse (married or de facto);
- child (natural, step or adopted);
- dependant under the age of 18; or
- ex spouse (where you have a mutual child under the age of 18 years),
and you have been inadequately provided for by the deceased’s will or as a result of his or her intestacy.
How will the court decide whether I have been adequately provided for?
It is the court’s job to ensure that adequate provision has been made for the proper maintenance and support of the deceased’s spouse, children and dependants.
In order to do this, a court will take into consideration:
- what the applicant has already received from the estate;
- the applicant’s unique circumstances (such as their health, income earning capacity and dependants);
- the amount of money available in the estate;
- provision claims other individuals may have on the estate; and
- the nature of the relationship between the applicant and the deceased.
How do I find out whether I have been provided for in a will?
Contact the executor of the will or the person administering the will to arrange a viewing or to obtain a copy of the will.
You have a legal right to request this if you are:
- The parent, child or spouse of the deceased.
- A person named in the will or any previous will of the deceased.
- A person who would inherit from the estate if there were no will.
- A creditor of the deceased.
- A dependant entitled to a maintenance claim on the estate.
Documents relating to probate proceedings may also be inspected at the court as public documents.
Contesting a will – How much time do I have?
You should provide notice of an intended application for family provision to the executor as soon as possible.
Although applicants have 9 months from the date of the deceased’s death to file a family provision application, an executor is allowed to distribute and finalise an estate after 6 months of the date of death, provided that they have not received notice of any intended claims on the estate.
Therefore, notice of any intended family provision application should be provided to the executor as soon as possible in order to preserve the estate until your application can be decided.
If you miss the 9 month filing deadline, it does not mean that you can’t make your application. However, you will need to provide adequate reason for your delay to obtain special permission of the court.
What else can the court make orders about?
The court also has the power to decide on the authenticity of a will or whether or not a will is invalid by reason of the deceased not being of sound mind or being unduly influenced by another person when they made the will.