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Challenging a Will

One of the most common ways for a Will or deceased Estate to be contested is through a Family Provision Application.

It is important for anyone making a Will to keep in mind that the Court is allowed to intervene where a certain person is excluded from a Will. If a family member feels they have been excluded, they can bring a Family Provision Application and “challenge” the Will.

Who can make a Family Provision Application?

The following people are entitled to make a claim if they feel they have not been adequately provided for:

  • Spouse, including de-facto spouse;
  • Children, including step children;
  • Dependants.

However just because a person is eligible to make a family provision application does not necessarily mean that they will be successful in their claim.

The legal test

The legal test is found in the case of Singer v Berghouse (No. 2) (1994) 68 ALJR 653. In this case it was determined that the family provision applications involve a two stage process:

  1. Does the will fail to make “adequate provision” for the proper maintenance and support of the applicant; and
  2. If so, what provision should be made for the applicant?

Factors a Court considers

The Court will consider other various factors, including:

  • Whether adequate provision has been made out of the Estate;
  • The size of the Estate;
  • How the distribution was effected under the Will;
  • The applicant’s financial position;
  • The relationship between the applicant and the deceased;
  • The needs and claims of the applicant;
  • The character or conduct of the applicant.

What to do?

Making a Family Provision Application is not an easy process and is something that you should discuss with a lawyer in detail. If you are considering making or responding to a Family Provision Application you need expert advice.

Strict time limits apply. Our expert Estate litigation team have many years experience in Estate litigation and will be able to ensure that your rights are protected.

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