The Will to Challenge

Modern life (and the complexities that come with it) mean that we must consider our estate planning very carefully.   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 they should have received more.  Where a person dies without a Will, it is also a real possibility that someone may feel that the laws of intestacy do not leave them with adequate provision from the deceased’s estate. 

The aim of the Family Provision Act 1972 (WA) (the Act) is to make provision for the maintenance and support of the dependants of a deceased person where those dependants do not receive an adequate inheritance from the deceased’s Will (or by section 14 of the Administration Act 1903 (WA) if the person died without a Will). 

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; or
• 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 by the Court.

The Court has a wide discretion to determine what is fair and adequate provision and will consider 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; and
• 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 experienced estate planning lawyer in order to ensure that all measures are taken to protect your estate from potential legal fees after your death – an ineffective Will can be expensive to your estate!

The existence of the Act also highlights the importance of seeking appropriate legal advice 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.