Claims on Estates

CLAIMS ON ESTATES

“I can leave my Estate to who I want, it’s my money after all!”

“No, my daughter surely won’t be able to make a claim against my Estate, we have been estranged for 20 years!”

“I will leave my entire Estate to charities, it’s my prerogative to do so and all of my children are billionaires, they can’t bring a claim against my Estate.”

Right? Wrong!

At Butlers, we have heard hundreds of variations of these phrases. While you have a right to determine who benefits from your Estate, it is entirely possible in Western Australia for a certain class of people to make a claim for greater provision out of your Estate, under the Family Provision Act 1972.

The law of family provision allows a Court to vary the provision made by the Will of a deceased person. This legislative framework is designed to enforce the moral obligation of a testator to use testamentary powers for the purpose of making proper and adequate provision after the testator's death for the maintenance and support of the family and financial dependents of a deceased person, out of the assets of the deceased’s Estate.

Formerly known as the Inheritance (Family & Dependants Provision) Act 1972, the Family Provision Act 1972 has undergone more than just a name change. Most significantly, the class of potential claimants against the Estate of a deceased person has now widened.

Depending on the circumstances, an eligible claimant may now include:

  • Spouses (including de facto spouses);
  • Children;
  • Former spouses;
  • Step-children;
  • Grandchildren; and
  • Parents

However, recent trends in Family Provision Claims have established that it is becoming more difficult for claimants to succeed in these claims.

Adult children or spouses are being seen by the Court to be able to maintain and support themselves.

Accordingly, adult applicants need to establish some special need or some special claim to justify intervention by the court under the Act.

Keep in mind, the position that the Court takes can change swiftly, so it’s best not to rest on your laurels. In the future, there could be a trend for Courts to be far more generous to adult able-bodied children and spouses.

Generally, a claim under the Family Provision Act 1972 must be commenced within 6 months of the date of the Grant of Probate, or Letters of Administration.

In considering whether the applicant should be entitled to a provision from the Estate, the Court will have regard, among other things, to:

  1. The applicant's financial position;
  2. The size and nature of the deceased's estate;
  3. The cooperation and support given by the applicant in the conduct of the deceased's business and affairs;
  4. The encouragement of the applicant by the deceased to base the applicant's lifestyle on the understanding that the applicant would inherit certain property;
  5. Any service rendered by the applicant to the deceased;
  6. The fact that the applicant has a dependent child;
  7. The totality of the relationships between the applicant and the deceased; and           
  8. The totality of the relationships between the deceased and other persons who have legitimate claims upon the estate of the deceased.

Is your Will drafted to effectively reduce the chances of any person making a claim against your Estate? Alternatively, have you been disinherited from a deceased’s Estate?

Contact us to make an appointment with one of our Estate Lawyers for advice regarding the operation of the Family Provision Act 1972.

 

 

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