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succession act 2006 - formerly under the (now repealed) family provisions act 1969)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