Bowen Buchbinder Vilensky

The Will to Challenge

This one (2)

By Laura Di Cristofaro, Solicitor at Bowen Buchbinder Vilensky Lawyers

31 March 2016

Modern life and the complexities that come with it mean that we must consider our estate planning very carefully.   However, with the increase in conflicting moral obligations to spouses, de factos, children, step children and other loved ones, even the most careful Willmaker may find that there is someone who feels that their Will is unfair and that they should have received an inheritance or a larger inheritance.  It is also possible that a relative may feel (for whatever reason) that, where a person dies without making a Will, the laws of intestacy do not provide that relative with adequate provision. 

The Family Provision Act 1972 (WA) (“the Act”) was enacted to make provision for the maintenance and support of the family and dependants of a deceased person, where the deceased person has not adequately provided for those people.  Under the Act the following classes of people may apply to the Court for further provision:

  • a spouse or de facto partner
  • a child
  • a parent

and, in certain circumstances:

  • a grandchild
  • a stepchild
  • a former spouse or former de facto partner.

The claim must be made within six months of a Grant of Probate (or Letters of Administration) being made.

The Court has a wide discretion to determine what is fair and adequate provision and will look at a number of factors, such as the claimant’s:

  • financial position
  • lifestyle
  • medical needs
  • relationship with the deceased,

as well as other factors such as the:

  • needs of other beneficiaries
  • size of the deceased’s estate
  • moral obligation to provide for the claimant.

The existence of the Act highlights the importance of ensuring that your Will is always valid and up to date in order to protect the rights of your beneficiaries.  It also highlights the importance of seeking advice from an experience estate planning lawyer when drafting your Wills in order to ensure that all measures are taken to protect your estate from legal fees after your death  - an ineffective Will is expensive to your estate.

If you were a dependant of a deceased person and do not believe that you have received an adequate or fair share of their estate, we recommend that you seek legal advice about your rights and the procedures involved in bringing a claim under the Act.  

Please contact Laura Di Cristofaro of our office at ldicristofaro@bbvlegal.com.au if you would like to have a discussion about Family Provision claims or your estate planning requirements.

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