Where there is a Will, there is a way - or not…

Who can challenge a Will and will they succeed?

Under the terms of the Family Provision Act 1972, the Court is allowed to override the terms of a deceased person’s Will or (where there is no valid Will) override the rules of intestacy applicable to a deceased person’s estate.

Those who can begin proceedings for provision include; a spouse (broadly defined), former spouse, a child of the deceased, dependent persons and stepchildren in certain circumstances.

It has been stated by the Courts that the purpose of the family provision legislation is to enable the Courts to remedy a breach by the Will maker of his moral duty to make proper provision, with regard to his property, for the maintenance, education and advancement of his family.

In making provision, the Court can only make an order that provides for the applicant’s proper maintenance and support. The order must be no more than what is adequate for that purpose. The Court may not make an order that simply achieves a redrafting of the deceased’s Will. Family Provision Acts are not designed to pacify hurt feelings or to ensure equal distribution of a deceased’s property.

The 2017 case of Lemon v Mead involved Michael Wright’s estate worth about $1 billion dollars. On appeal, the Court ordered that the $26 million granted to Mr Wright’s daughter by the lower Court be reduced to $6 million.

This case shows that the applicant still needs to show financial need and the applicant will only receive enough to satisfy that need, hence the amount was reduced on appeal.

You cannot avoid the operation of the Family Provision Act by inserting a clause into your Will that the Act is not to apply or by providing in your Will that a beneficiary who challenges your Will is not to receive benefit under it.

In Western Australia, property can be protected from a challenge under the Family Provision Act, by ensuring that it does not form part of the estate of the deceased, at the date of death. Depending on the particular circumstances, there are strategies to avoid potential claims.

We can assist if you require advice in respect of Will challenges or any other estate planning matter.