Blog post by Fiona Lester
Part of the Australian system of law is ‘Common Law’, which governs how we pass on our property by Will. Common Law allows us to leave our property and assets to whoever we wish. This concept is known as ‘freedom of testamentary disposition’ and differs from many other legal systems around the world which have strict rules for the inheritance of property. However, all Australian states have legislation in place which recognises that if there are sufficient assets, a deceased person’s estate should provide support for dependants of the deceased, rather than the State.
In Western Australia, if the terms of a Will do not make adequate provision for the maintenance and support of the deceased person’s dependants, an application to challenge the Will can be made under the Family Provision Act 1972 (WA). If a claim is successful, the applicant will be legally entitled to a portion of the assets of the deceased’s estate.
Under the Family Provision Act, the dependants who have a right to make a claim are close family members of the deceased, such as a child, a spouse or a de facto partner, or a former spouse or partner who was receiving maintenance payments from the deceased. In some circumstances, stepchildren, grandchildren or a parent of the deceased may also be eligible to make a claim.
Claims made under the Family Provision Act are complicated and should only be made after you have received legal advice. There are various factors which a lawyer will need to take into consideration before advising on whether or not a claim should be made, including the following:
– Whether you are eligible to make a claim;
– Whether there are other people who are eligible to claim;
– If and when a Grant of Probate has been made;
– Whether you need support for maintenance, support, education or “advancement in life”;
– Your previous and current financial position;
– The financial position of other Beneficiaries under the Will;
– The size of the deceased’s estate;
– What would be considered to be ‘adequate’ provision from the estate.
Claims can be settled without going to Court, and involve negotiating an agreement with the Executor and all Beneficiaries of the Will, and drawing up a formal Deed of Settlement. If a claim can’t be settled in this way, an application must be made to the Supreme Court and the claim will go to Mediation. If Mediation is unsuccessful, the matter will go to trial and be decided by a Judge.