A family provision claim is a legal application to the Court by a person who feels they have not received adequate provision from a deceased person’s estate. Not just any person can make such an application. They must first be deemed eligible.
The legislation in all states and territories of Australia empowers the Court to make orders for provision for the proper maintenance and advancement in life for an eligible person from the deceased person’s estate.
There are, however, slight differences in the legislation of each state and territory as to who is an eligible person.
Who is eligible to contest a Will in Australia?
The following people may be eligible to contest a Will in Australia, depending on their relationship with the deceased and the laws that apply in their state or territory. Eligibility varies across Australia, and some categories of people must meet additional conditions before they can make a family provision claim.
Can a spouse contest a Will?
A spouse is eligible to make a family provision application in all Australian jurisdictions. There are slight differences when it comes to de facto partners or domestic partners.
In Queensland, “spouse” is defined to include husband/wife, de facto partner, and civil partner. In Tasmania, “spouse” is defined to include a “significant relationship”.
In NSW, Northern Territory, and WA the legislation specifically includes de facto partners. Whereas in ACT, Victoria, and SA, the term “domestic partner” is used to describe the same type of relationship.
Can a former spouse contest a Will?
In NSW, a former spouse is eligible to make a claim in some circumstances.
In NT, SA and WA, a former spouse is eligible to make a claim for provision if they are still being maintained or otherwise dependent upon the deceased at the date of death.
In Victoria, a former spouse is eligible if they would have been able to initiate family law proceedings but have not done so or if family law proceedings have not been finalised.
Can children or step-children contest a Will?
The biological and adopted children of the deceased are eligible in all jurisdictions to make a claim for provision.
Significant differences apply to stepchildren. Only in Queensland and Victoria is a stepchild included in the definition of “child”.
The legislation in each of ACT, NT, WA and SA includes stepchildren as a category of eligibility but on the condition that the stepchild was being maintained by the deceased as at the date of death.
In Victoria, eligibility even extends to “a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased”.
In NSW, a stepchild is only eligible if they fall into the category of a dependent explained below.
Can grandchildren contest a Will?
A few states expressly include grandchildren in the list of eligible persons: these are Victoria, SA, ACT, NT, and WA.
In ACT, NT, and WA, the grandchild is only eligible if their parent being the child of the deceased had died before the deceased and deceased was responsible for the grandchild’s maintenance at the date of death.
In NSW, grandchildren are expressly included in the legislation, but only if they were at some time wholly or partly dependent on the deceased person and that there are factors which warrant the Court making provision for the grandchildren.
Can a parent contest a Will?
The parent of the deceased may be eligible to make a family provision claim in WA, ACT, SA, and NT. In SA eligibility is conditional on the parent having cared for, or contributed to the maintenance of the deceased person, which effectively rules out parents who were not involved in the deceased’s upbringing.
In ACT and NT, a parent is only eligible if the deceased did not have a spouse, de facto partner or child.
In NSW, a parent may be eligible if they fall into the category of a dependent or close personal relationship explained below.
Can siblings contest a Will?
Only South Australia makes mention of siblings who are eligible if they cared for or contributed to the maintenance of the deceased person.
In NSW, a sibling may be eligible if they fall into the category of a dependent or close personal relationship explained below.
Can a dependent contest a Will?
In NSW and QLD, a person who was dependent upon the deceased may be eligible.
In NSW, this includes a person who was at any time dependent upon the deceased and either a grandchild, or a member of the deceased’s household. Parents, siblings, and grandchildren, may be eligible in NSW if they can satisfy the requirements for a dependent.
The timing of being a member of the household and dependency do not have to be the same.
As well as proving that they were dependent upon the deceased, the applicant in NSW must also prove that there are factors which warrant provision being made for them from the estate.
In QLD, a dependent is defined to include the deceased’s person parent, the parent of the deceased’s minor child, or a person under 18 years who was dependent upon the deceased at the date of death.
Can a carer or someone in a close personal relationship contest a Will?
In NSW, a person who was living in a close personal relationship with the deceased at the date of death is eligible. “Close personal relationship” is defined to be a relationship (other than marriage or de facto relationship) between two adult person who are living together and providing each other with domestic support and personal care. Again, this category of person must also prove that there are factors above and beyond their relationship that would warrant the Court making provision for them.
At Turner Freeman Lawyers we have several Accredited Specialists in Wills & Estates (NSW), and lawyers who have been recognised in the Doyle’s Guide for Estate Litigation for several consecutive years. If you believe you are eligible to make a family provision claim or have other grounds to contest a will, contact our team.
