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Contesting an estate

Written by Vik Sundar on .

It is often assumed that when you die, your Will has the final say as to where your assets pass and to whom.

What you may not realise is that if someone believes they have not been adequately provided for by you at death, your Will may be challenged in Court. This type of claim is known as a family provision claim.  

What is family provision and why can someone make a claim against my estate if I have a Will?

Family provision is an application made to the Supreme Court for a portion or larger portion of a deceased person’s estate. A claim for family provision can be made against someone’s estate whether or not they have a Will in place at their death.

Simply having a Will that directs where your assets pass on death does not necessarily prevent someone from challenging your estate. There are laws in place that allow an eligible person to make a claim for provision, regardless of whether or not there is a Will. 

Family provision exists to provide adequate and proper maintenance for eligible applicants, where the estate fails to provide such provision. Our Succession Laws in Australia developed from historical Roman and British law that required a deceased person to pass some of their estate to certain relatives (generally wives and children). The family provision laws we have today, are designed to address injustices in testamentary freedom. [1]

Who can claim against my estate?   

Whilst each State and Territory across Australia have different laws outlining who may be eligible to claim against your estate, generally, those persons who can make a claim include[2]:

  • a husband or wife;
  • a de facto partner;
  • a child;
  • a stepchild or grandchild in certain circumstances; or
  • a person living in a close personal relationship.  

If you are concerned someone might be considered eligible to challenge your estate, we encourage you to seek specialist legal advice.

What does a Court consider in deciding whether to award provision?

The Court considers a number of factors to determine whether provision ought to me made to the eligible person, and if so, how much. These factors may include[3]

  • the terms of the Will; 
  • evidence of the deceased’s reasons for the dispositions in their Will;  
  • the nature and duration of the relationship between the eligible person and the deceased; 
  • any contributions the eligible person has made to the deceased’s assets (whether financial or non-financial);
  • any contributions the deceased or the eligible person has made to each other or to their children e.g. parenting;  
  • the financial circumstances of the eligible person;
  • the size of the estate;
  • whether there are any other claims on the estate;
  • any family law obligations; and 
  • any other mattes that the court considers relevant. 

Again, these factors vary from state to state, so it is important to seek appropriate legal advice. 

How can Clear Law assist you?

Our team specialises in advising clients in relation to their private wealth which includes estate planning and administration. 

It is important to ensure that you have a comprehensive and robust estate plan in place that contemplates and addresses any risks of estate contestation.  

There are many strategies we implement for our clients to enhance asset protection for their estate. Some of these strategies include:  

  • restructuring asset ownership which can include the use of entities such as trusts or companies to reduce the assets that will pass into the estate at death;  
  • implementing strategies in the testator’s Will to balance the competing interests in blended families (for example, children from previous relationships); and
  • assisting clients with the preparation of documentation that may add additional layers of protection in the event their estate is challenged.  

If you would like to discuss your Estate Plan or the risk of a family provision claim, we encourage you to reach out to our Team. 

[1] John K de Groot and Bruce W Nickel, Family Provision in Australia (LexisNexis Butterworths, 3rd ed, 2007).

Family Provision Act 1969 (ACT) s 7; Succession Act 2006 (NSW) s 57; Administration and Probate Act 1958 (VIC) s 90.

Family Provision Act 1969 (ACT) s 8; Succession Act 2006 (NSW) s 60; Administration and Probate Act 1958 (VIC) s91A.