Disputing a Will: When can a person apply for provision out of an estate?

If your relative has died and you believe that their Will does not provide adequately for you, you may be entitled to challenge the distribution of their estate.

When a person dies and leaves a will that fails to make adequate provision for a family member or family members of that person, the family member(s) may be able to apply to the Court for an order for provision out of the deceased’s estate.  Both the ACT and NSW have laws which govern such applications.  This legislation is not limited to immediate family members, but also applies to other persons that had a close relationship with the deceased.  Further, if the deceased person did not leave a valid will, an eligible person may still apply to the Court to make an order for provision out of the estate.  When the Court grants an order it will operate as if such provision had been made in the deceased’s will.

Many people may be surprised by the broad spectrum of relationships that may underlie a claim for provision under the Acts.

A person may be eligible to make a claim for provision if:

  • they are the spouse of the deceased,
  • or lived in a domestic relationship with the deceased,
  • or if they are a child, grandchild or stepchild of the deceased.

In the ACT, a parent of the deceased is also eligible to make a claim for provision if they were dependent on the deceased or if the deceased was not survived by any partner or children.  In NSW, the legislation also provides more broadly that any person may be able to make a claim if he or she was at any time wholly or partly dependent on the deceased and was at any time a member of the same household as the deceased.  If any of these categories appears to apply to you, it is worth making an appointment to seek legal advice as to whether you satisfy the requirements to be eligible to lodge a claim under the relevant legislation.

In determining whether to make an order for family provision, the Court will look at whether adequate provision has been made for the proper maintenance, education or advancement in life of the family member or other applicant.  There is a broad range of factors which the Court will take into account, including the nature and duration of the relationship between the applicant and the deceased; the character and conduct of the applicant, the financial situation of the applicant, and, in particular, any financial or non-financial contributions that the applicant made to the deceased during their lifetime.

Generally an application for provision out of an estate must be made within twelve months of the death of the deceased person.

For more information or to make an appointment contact:

Matthew Bridger

e: mbridger@elringtons.com.au | p: 02 6206 1300