Everyone knows that having a valid Will in place means smooth sailing for those who benefit from a deceased person’s wishes. Right?

Well, yes, but not quite. What happens if someone is not happy with a Will?

Consider a child who thinks that he/she is not receiving enough, or who is cut out of the Will completely from Mum’s or Dad’s estate?

Such persons can make ‘Family Provision’ claims in the Supreme Court for a greater share to be paid to them out of a deceased person’s estate.

Who can make these claims?

  • Husband or wife
  • De facto spouse
  • Child
  • Ex-husband or ex-wife
  • Grandchild or a person who was a member of the same household as the deceased, and who was wholly or partly dependent upon the deceased
  • A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

Sometimes the above categories create grey areas. For instance, the case of a person claiming to have been in a ‘close personal relationship’ with the deceased.

Such claimants can often be challenged as to the validity of their claim. Ultimately, a Court will decide if the person would generally be regarded as someone who should have been included in the Will.

The Court will consider whether adequate provision has been made to the claimant by the estate for their proper maintenance, education or advancement in life.

A paramount consideration is always the claimant’s financial needs such as accommodation, medical needs, dependants and debts.

Other relevant factors may include the nature of the relationship, the deceased’s obligations to the claimant, the size of the estate, the claimant’s partner’s financial resources and the claimant’s children’s needs.

Does that mean a Will is not worth the paper it’s written on? Most certainly not. A legal Will is always a critical and essential document when the Court looks closely at claims over an estate.

The Court is not generally in the business of rewriting Wills. However, any interference with the Will is only made to the extent necessary to make adequate provision to eligible claimants, where the legislative requirements are met.

A simple three-page Will is almost always better than not having one at all. These days many family structures are complex due to history and ongoing circumstances. It may be helpful for the Will-maker to have a statement giving context and reasoning to their testamentary intentions.

We strongly suggest seeking legal advice when it comes to making a Will.

Most Family Provision claims are settled outside of Court but even the process of having to commence costly proceedings and negotiate settlements can be emotionally draining on those who must deal with the problem.

Of the cases that have proceeded to Court decisions there are some interesting stories to tell.

We will share some interesting real life cases with you in the next post.

Disclaimer: The information in this article is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from a legal practitioner in the office of Bay Legal.