Have you been excluded from a family member's Will?

Have you been excluded from a family member's Will? Recourse under the Family Provision Act 1972 (WA)

The Family Provision Act 1972 (WA) allows eligible individuals, such as spouses, de facto partners, children, parents and potentially other dependents like grandchildren and spouses who:

• were financially dependent on the deceased; and,
• were left out of a Will or not adequately provided for, 

to apply for financial provision from the deceased's estate.

In Western Australia, the Family Provision Act plays an important role in providing fairness and protecting the rights of family members and dependents who may have been left out of a Will or inadequately provided for. 

When assessing a claim under the Family Provision Act, the Supreme Court will take into consideration factors such as:

• the financial needs of the applicant;
• the value of the deceased's estate; and
• the nature of the deceased's relationship with that of the applicant.

The principal objective of the Court is to make sure that the applicant is ensured of proper maintenance, education and advancement in life.

Criteria to be met under the Family Provision Act

Who is an eligible applicant?

Eligible applicants include the deceased's spouse, de facto partners, children, parents, and in some cases other dependents such as a financially dependent grandchildren and ex-spouses.

What is the criteria for an order making provision?

The relevant factors for consideration by the Court include:

• the nature and value of the deceased's estate;
• the relationship between the deceased and the applicant;
• the resources and financial needs of the applicant;
• the responsibilities and obligations the deceased had toward the applicant, if any; and
• the applicant's behaviour towards the deceased before the deceased's passing.

The consequence of the successful application on the Will

A successful application under the Family Provision Act will obviously impact upon the distribution of the deceased's estate as expressly intended by the Will and, more than likely, reduce the share of other beneficiaries under the Will.

Accordingly, other beneficiaries or executors may oppose the application, typically contending that the Will expressly reflects the wishes of the deceased, there has been disentitling conduct by the applicant or the applicant has sufficient financial resources.

The Court exercises a broad discretion when deciding upon an application before making any order for provision. The primary consideration is to ensure proper maintenance, education or advancement in life whilst taking into consideration the other beneficiaries financial considerations and needs weighed against the size of the deceased's estate.

Time limitation to make application

An application to the Court under the Family Provision Act must be made within six months of the grant of probate or letters of administration. Delay in making the application can be fatal. 

It is fundamentally important that you act quickly when you realise that you have not been adequately catered for under a Will. To maintain fairness and protection of your rights and entitlements, act quickly to obtain legal advice and carry out the required steps. Vogt Legal, have the necessary experience to assist applicants in their claims under the Family Provision Act.  Do not hesitate to contact one of our team members for legal advice and representation in your claim.

Disclaimer

Liability limited by a scheme approved under Professional Standards Legislation.
This webpage is provided for general information purposes only and does not constitute legal advice. It does not take into account your objectives, instructions or all of the relevant facts and/or circumstances. Vogt Legal and Will Vogt accept no responsibility to anyone who relies on the information provided on this website.