People can dispose of their property as they see fit, however
the law recognises that they can also have a moral duty to provide
for certain people when they die.
If someone feels that an entitlement under the Deceased's
Will is inadequate to provide for their proper maintenance,
education or advancement in life, then they may apply to the
Supreme Court for further provision from the Estate.
People eligible to make a claim include spouses and former
spouses, de facto partners, children, grandchildren and other
A claim must be commenced no later than 12 months from the date
of death of the deceased person. The Court may, at times make
exceptions, based on the reason for the delay, strength of the
case, whether the claim causes unfairness to beneficiaries and/or
whether either side has acted unconscionably.
If the Court is satisfied that someone is eligible it will
examine if adequate provision has been made. This includes
assessing the applicant's finances and the size and nature of
the Deceased's Estate.
In addition, the Court examines the relationship between the
applicant and the Deceased, as well as the relationship,
circumstances and needs of other people with legitimate claims to
Other areas the Court may consider include any physical,
intellectual or mental disability of the applicant, whether any
other person is liable to support the applicant and any other area
the Court considers relevant, including matters in existence at the
time of the deceased person's death or at the time the
application is being considered.
The two scenarios below demonstrate the factors that can affect
a Court's ruling in the area of contested estates:
The Deceased died without a Will and was survived by his wife and
four children from a previous marriage. In the circumstances, the
wife stood to inherit 60% of his $2m Estate with the remaining 40%
to be divided between his children.
One child had a severe disability and, consequently, had very
modest finances coupled with extensive medical expenses.
Proceedings for further provision from the Estate began on her
behalf and a family provision order was made in her favour.
The Deceased had a daughter and a stepdaughter who had both been
dependent on the Deceased from infancy. In the Will, the Deceased
left the majority of the Estate to her daughter while her step
daughter received only a nominal amount.
The daughter was financially better off and the stepdaughter
began proceedings on the basis that she had been dependent on the
Deceased for most of her life and required further provision.
The stepdaughter was successful in obtaining a family provision
order which effectively resulted in the two women receiving equal
If the Court finds that the provision made is inadequate, the
family provision claim is successful and the Court will make an
order which, in effect, varies the Deceased's Will in the
It is very important for an Executor to refrain from
distributing the Estate if made aware of any potential claim, and
to seek legal advice as soon as possible.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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