A Will can be challenged for a host of reasons ranging from improper signing of the document through to complaints that it did not adequately provide for potential or actual beneficiaries. Sound estate planning ensures that the formalities needed to have a valid Will are satisfied and that the scope for dispute about its terms is minimised. Litigation over Wills is becoming increasingly common as families become more complex and estates become larger. Therefore getting appropriate Estate Planning and Will advice is critical in the scheme of things.
What is a family provision application?
A family provision application is when someone makes an application to a court seeking a share of a deceased’s estate or a larger share of a deceased’s estate. The court is required to balance the competing objectives of the Will maker’s freedom to dispose of their property on death in accordance with their wishes and the family financial dependents.
Who can contest a will?
When a person dies, there are certain people who may be eligible to bring a family provision application against a deceased person’s estate. Generally those eligible to apply include:
(a) the spouse of the deceased
(b) the children of the deceased
(c) a limited range of financial dependents
The court has the power to decide the merit of the application and the sum, if any, to be awarded to the applicant. There is no set method of calculating the sum which an applicant should take from the estate of a deceased person. The outcome of a family provision application is dependent on the circumstances of each case.
How do Courts decide a family provision application?
The Court will consider a family provision application in two stages, being:
(a) stage 1 – whether or not adequate provision has been made for the applicant’s proper maintenance and support (the applicant must satisfy the court that inadequate provision has been made before the court can consider making any provision in favour of the applicant); and
(b) stage 2 – if adequate provision has not been made, then the court will consider whether an order for provision will be made and if so, in what amount.
What issues will the Court take into account?
The Court’s primary focus is the applicant’s financial needs, however the Court also considers:
(a) the size of the estate
(b) the provisions under the Will
(c) the applicant’s medical needs
(d) contributions by the applicant to the build up of the deceased’s estate
(e) the relationship between the applicant and the deceased
Integral Financial Planning is located on the Gold Coast and can assist you and help facilitate your Wills and overall Estate Plan with specialist lawyers in these areas.
With the latest technology we can assist you regardless of your location and welcome you to make contact with us on 0755592250 for an initial consultation at our expense.
You should seek personal advice prior to implementing any strategies as there are many rules and limitations that need to be considered, please refer to our general advice warning, terms and conditions.
This material has been provided by third party specialist lawyers.