The Family Provision Act (ACT) 1969 provides the pathway for certain individuals to contest a Will (or the laws of intestacy in the event there was no valid Will) if the individual feels that inadequate provision for the proper maintenance, education or advancement of life has been made for them under the Will (or by the laws of intestacy). For the Family Provision Act (ACT) 1969 to apply, the deceased must have left property in the ACT, or have died in the ACT.
It is not as simple as saying “I didn’t receive anything” or “I want more”; rather, the applicant needs to be eligible to make a claim and be able to show that they were financially dependent upon the deceased before the deceased’s death.
The following people can make an application to contest a Will in the ACT:
A current or former partner of the deceased – this includes the deceased’s spouse, de facto partner (having been in a relationship for at least 2 continuous years), or being the parent of a child of the deceased person;
A child of the deceased;
A stepchild of the deceased – but only if they were maintained by the deceased immediately before the deceased’s death;
A grandchild of the deceased – but only if that person’s parent died before the deceased, or if the child is not maintained by their parent immediately before the deceased’s death; or
A parent of the deceased – but only if the parent was maintained by the deceased immediately before their death, or the deceased is not survived by a partner or children.
An eligible applicant can challenge the Will by making an Application to the Supreme Court of the ACT within 6 months of the date of a Grant of Probate or Letters of Administration being granted.
The Supreme Court will consider the following in deciding whether they are satisfied that in-adequate provision for the proper maintenance, education or advancement of life of the Applicant was made in the deceased’s Will (or by the laws of intestacy):
The character and conduct of the applicant;
The nature and duration of the relationship between the applicant and the deceased;
Any financial or non-financial contributions made by both the applicant and deceased to the acquisition, conservation or improvement of property of either person (if applicable);
Parent and homemaker contributions of the applicant and deceased (if applicable);
The income, property and financial resources of the applicant and the deceased;
The applicant’s capacity to gain meaningful employment – the Court will also consider that of the deceased while they were alive;
The financial needs and obligations of both the applicant and the deceased while they were alive;
The applicant and deceased’s respective obligations to support any other person;
The terms of any orders concerning the payment of maintenance (both spousal maintenance and child maintenance) relating to the applicant and/or the deceased; and
Any other matters the Supreme Court considers relevant.
In the event the Supreme Court is satisfied that inadequate provision has been made for the applicant, it has the power to make orders that it thinks fit out of the estate. The Supreme Court is not restricted to dealing with the residue of the estate (i.e. anything that has not otherwise been specifically gifted), but rather can make orders concerning all property of the estate, including property specifically gifted to other individuals.
Two examples of the type of Orders that the Court may make are, the transfer of ownership of property to the applicant and a lump sum payment to the applicant. To achieve the latter, it may be necessary for the Court to order the sale of specific property.
Family provision claims can be complex and nuanced. In the event you are considering filing a family provision application you should first obtain specialist advice in relation to the evidence that you can give in support of your application, and the prospects of your application being successful.
Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Peta Sutton