Family provisions

challenging a will

If you are an eligible beneficiary of an Estate and you have been omitted or excluded from benefiting from an Estate, our probate lawyers can help you make a claim on the Estate. Challenging a will involves making an application to the Supreme Court to request that they provide you with a share of the Estate that you are legally entitled to.

family provisions

Can I prevent a family provision claim?

There is nothing that can prevent an eligible person from making a claim on an estate if they are so entitled. If you believe that you may be entitled to make a claim, you should seek legal advice urgently as time limitations do apply.

Who can make a family provision claim?

• Spouses
• De facto partners
• Children
• Former spouses
• A dependent person
• A person who had a close personal relationship with the deceased

What does the court take into consideration?

In order to make a successful application to the court for a family provision claim, the court considers:
• whether the claimant is an eligible person under the Act
• whether adequate provision has been made for the claimant within a Will given their circumstances.

There are a number of factors that the Court must take into consideration when deciding whether a provision should be made for a beneficiary who has been left out of a Will. These factors are set out in s60 of the Succession Act.

Family Provisions - legislative basis

succession act 2006 - formerly under the (now repealed) family provisions act 1969)

Part 3.2 – Family provision orders Division 1 – Applications for family provision orders

57 Eligible persons

(1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person:

(a) a person who was the wife or husband of the deceased person at the time of the deceased person's death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death,

(c) a child of the deceased person,

(d) a former wife or husband of the deceased person,

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.