Contesting a Will - Family Provision Applications
In addition to the remedies available by reason of incapacity or coercion of the testator or testatrix, a Will can be contested for failing to adequately provide for the proper maintenance and support of a defined class of persons under Part 4 Family Provision of the Succession Act 1981.
You can make a Family Provision Application to vary the distribution of an estate whether a person has died intestate (without a Will) or testate (with a Will).
However, time limits apply to the making of a Family Provision Application. Proceedings must be initiated in the Court within nine months of the death of the deceased. If an Application is made after this time, the Court has a discretion as to whether to hear the Application. The onus is on the applicant to show that the merits of the case warrant an extension of the time limit.
Furthermore, notice must be given to the personal representative of the estate so as to establish a duty not to distribute the estate before the nine month time limit. The Court cannot hear a Family Provision Application if the estate has been fully distributed.
Who can apply?
The class of persons who can apply are spouses, children or dependents. These terms are further defined. For example, child include step children or adopted children. A dependent is limited to:
- A parent of the Deceased;
- A parent of a surviving child under the age of 18 of the deceased;
- A person under the age of 18; or
- A de facto spouse of the deceased.
Your circumstances may bring you into one of the defined classes.
What kind of Orders may be made by the Court?
The Court has a wide discretion to make an Order under the Family Provisions for such provision as it thinks fit. Accordingly, 'adequate provision' will depend on the circumstances of the estate and your personal circumstances.
