While you have a right to determine who benefits from your Estate, in recent years the Court has been increasingly willing to make orders that your estate should be distributed to certain classes of people who you may intentionally leave out of your Will.
It is now possible in Western Australia for certain 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 dependants of a deceased person, out of the assets of the deceased’s Estate.
On 16 January 2013, the law governing the circumstances under which someone can bring a claim for greater provision out of the Estate of a deceased person changed in Western Australia.
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);
- Former spouses;
- Grandchildren; and
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.
A potential applicant must show that they are eligible to make a claim, that the deceased failed to make adequate provision for them under his or her Will (or on intestacy), and what, in all the circumstances, they consider to be adequate provision from the Estate, for them.
In considering whether the applicant should be entitled to a provision from the Estate, the Court will have regard, among other things, to:
- The applicant's financial position;
- The size and nature of the deceased's estate;
- The co-operation and support given by the applicant in the conduct of the deceased's business and affairs;
- The encouragement of the applicant by the deceased to base the applicant's lifestyle on the understanding that the applicant would inherit certain property;
- Any service rendered by the applicant to the deceased;
- The fact that the applicant has a dependent child;
- The totality of the relationships between the applicant and the deceased; and
- 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 or make an appointment with one of our Estate Lawyers for advice regarding the operation of the Family Provision Act 1972 by choosing your Solicitor below.