Family provision claims

While will-makers are free to decide how their assets should be distributed upon their death, it may come as a surprise to many that the Supreme Court may alter the terms of a Will in some circumstances.

The Family Provision Act 1972 (WA) permits certain relatives to apply to the Court for provision from the estate for their “proper maintenance, support, education or advancement in life”.

Applications can be made for provision from estate irrespective of whether it is being distributed under the terms of a Will or under the rules of intestacy.

In our experience, most claims for family provision are resolved at a mediation conference or before trial.

We act for and advise applicants, executors and beneficiaries.

Who can apply?

The persons who may apply are:

a spouse or de facto partner;
a former spouse or former de facto who was receiving or entitled to receive maintenance;
a child living at the date of the death or born within 10 months thereafter;
a grandchild who was:
- being maintained wholly or partly by the deceased immediately before death; or
- who, at the date of death, was living (or born within 10 months after the death) and one of whose parents was a predeceased child of the deceased;
a stepchild of the deceased:
- who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the death; or if –
- the deceased received or was entitled to receive property from the estate of a parent of the stepchild greater than $517,000; and
a parent of the deceased.

When to apply

Applications must be made within 6 months of the Court making a grant of probate or letters of administration. In limited circumstances, the Court has the power to extend this deadline.

Factors the court will consider

The Court takes a two-stage approach to claims. Firstly, it must determine whether the deceased made adequate provision for the applicant for their proper maintenance, support, education or advancement in life. This is assessed as at the date of death and is an assessment of the applicant’s needs rather than a value judgment about fairness.

If the Court concludes that the deceased did not make adequate provision for the applicant, it will then consider what provision (if any) it should make. In doing so, the Court will put itself in the shoes of a ‘wise and just testator’ in the position of the deceased.

Factors the Court generally considers are:

the applicant’s financial position, level of education, and age (including future earning capacity);
the provision made in the Will for the applicant (if any);
the relationship the deceased had with the applicant and the other beneficiaries;
the value and type of assets in the estate;
any contribution the applicant made to the deceased’s assets/estate;
the needs of other family members and beneficiaries;
any disentitling conduct of the applicant.

Costs

The Court has the power to determine who pays the costs of the application. It will usually order that the executor/administrator’s costs be paid by the estate.

If an application is successful, the Court may order the applicant’s legal costs to be paid by the estate.

Recent cases

We acted for the mother of a wealthy son who died young, leaving a sizable estate. The son inherited much of his wealth from his deceased father (the ex-husband of our client). The mother had made many sacrifices to ensure her son received the inheritance. The mother brought a family provision claim which was resolved on favourable terms.

We acted for the executor of an estate where the will-maker excluded one of her adult daughters due to the daughter’s long-running misconduct. The daughter brought a family provision claim. We favourably resolved the claim at an early stage, enabling the administration of the estate to be completed.