Australia: It's all in the family - the ins and outs of contested estates

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 dependents.

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 the Estate.

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:

Example one
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.

Example two
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 distributions.

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 claimant's favour.

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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