Updated 1 Jan 2021
Have you been left out of the will or left too little? If so, you may be thinking about challenging a will.
Family Provision Claim
Challenging a will is not as simple as it sounds. It is not a case of challenging for the sake of challenging.
Generally speaking, an eligible person can make a claim seeking provision or further provision from the estate or notional estate of the deceased person, for the maintenance, education, or advancement in life.
In such claims, it is not the function of the Court to rewrite the will of a deceased person, but rather determine whether adequate provision was made for the claimant for his or her maintenance, education, or advancement in life.
A number of requirements of course must be fulfilled. First, you must be an eligible person.
Challenging a Will – Eligible Persons
A person who brings such a claim under Chapter 3 of the Succession Act 2006 must be an “eligible person”.
S57. Defines who is an eligible person, and in broad terms it is as follows –
(a) the husband or wife of the deceased at the time of death;
(b) de facto partner of the deceased at the time of death;
(c) a child of the deceased;
(d) a former wife or husband of the deceased;
(e) a person who was at any particular time, wholly or partly dependent on the deceased and who is a grandchild of the deceased and was at that time or any other time a member of the household of which the deceased was a member.
(f) A person with whom the deceased was living in a close personal relationship at the time of death.
The meaning of “child” of the deceased has the normal and expanded meaning and includes those born as a result of sexual relations between the parties to the relationship; those adopted by both parties; in the case of a de facto relationship between a man and a woman – a child of the woman of whom the man is the father or presumed to be the father by virtue of the Status of Children Act 1996 (unless the presumption is rebutted); in the case of a de facto relationship between two women – a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996; a child where both parties have parental responsibility for the long-term welfare of the child within the meaning of the Children and Young Persons (Care and Protection) Act 1998.
The Criteria – Considerations the Court will make
Chapter 3 of the Succession Act 2006 deals with Family Provision applications. The essential question for a successful challenge is whether the court considers that “adequate provision for the proper maintenance, education or advancement in life” has not been made for the person challenging.
If the court considers that adequate provision has not been made, then the court may make such order for provision out of the estate of the deceased person as it thinks ought to be made.
The Evidence
The applicant in any Family Provision application must set out clearly in affidavit form, why he/she is entitled to provision out of the estate of the deceased. This will essentially detail his/her financial situation, history as to his/her relationship with the deceased, his/her reliance on the deceased and various other factors. Above all, he/she will need to show their need for proper maintenance, education or advancement in life.
Time Limit for making a claim
A claim must be made within 12 months of the death of the deceased, however, leave can be granted outside that period.
Contact Proctor & Associates now for advice as to making a claim and we will gladly assist you.