In our system of succession there is a generalprinciple that a Testator (the person making the Will) should have the freedom to leave their property to whomever they like on their death. However, Family Provisions of the Succession Act enable a Court to override the provisions of a Will or the Rules of Intestacy so that a person, who is not adequately provided for in relation to his or her maintenance and support, will receive a provision from the Estate or an increased provision from the Estate.
Consequently the Law of Family Provision can and does override the ability of a Testator to leave his or her Estate to whomever they wish to.
Potential challengers may include:
- Your spouse (including de facto’s, mistresses and gay partners)
- Biological and adopted children
- Anyone that you financially maintain (but not in all States)
The first step the Court must determine is whether or not as a result of the distribution of the Deceased’s Estate under the terms of the Will or under the Rules of Intestacy, an eligible applicant has been left without adequate provision.
In deciding whether there has been adequate provision in all the circumstances the following factors have been considered as important:
- The size of the Estate
- The means and financial responsibilities of the Applicant
- Any contribution (whether financial or otherwise) by the Applicant to the acquisition, conservation and improvement of the Estate of the Deceased or to the welfare of the deceased or his or her family.
The decision as to whether or not there has been adequate provision made for the eligible Applicant is a question of weighing and balancing all of the circumstances of the case.