Pre-empting Contested Wills Claims

What is a Contested Wills Claim?

A Contested Wills Claim (more commonly know as a family provision claim) is a claim made by an “eligible person” against your Estate Assets after your death. The Succession Act 2006 empowers the Courts to make Orders in effect remaking a person’s Will where the “eligible person” has been left out of the Will or has not been adequately provided for and the Court considers that it is appropriate to so so in all the circumstances.

The Succession Act effectively imposes a moral obligations on people to make adequate provision in their Wills for “eligible persons“. Significantly, when an “eligible person” maks a claim the assets that a Court ca deak with include what is broadly known as “notional estate“. “Notional Estate” includes assets that would otherwise not form part of your Estate, assets such as Superannuation Death Benefits, interests in jointly owned property and the proceeds if Life Insurance policies.

Eligible Persons

The following are “eligible persons” who may apply to the Court for a family provision  in respect of the Estate of a deceased person:

  1. a persons who was the wife or husband if the deceased person at the time of the deceased person’s death,
  2. a former wife or husband of the deceased person,
  3. a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
  4. a child of the deceased person,
  5. a person:
    1. who was, at any particular time, wholly or partly dependent on the deceased person, and
    2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
  6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Whilst former de facto partners are not specifically named as “eligible persons” in the Succession Act, they can usually satisfy the Court that ther are an “eligible person” on the basis that they were wholly or partly dependent on the deceased person and were a member of the deceased person’s hoursehold at a particular time.

Advanced Estate Planning

Careful Estate Planning is required whenever there are likely “eligible persons” of your Estate who you want to exlcude from receiveing any benefit from your Estate Assets on your death. There are may strategies for protecting Estate Assets from “eligible persons“, however, the appropriateness of each strategy must be considered for each individual. Generally, such strategies are implemented over time so as to minimise stamp duty and capial gains tax liabilities.

It is not always possible, however, to completely defeat the potential for an “eligible person” challenging your Will. In these instances Willmakers may wish to make a Statement to be kept with their Will and to be used in Court proceedings in the event that an application is made for a family provision Order. The Statement would set out the circumstances that the Court should consider when determining whether it is appropriate to make a family provision Order.

By Anna Roberts

Director, Solicitor & Family Dispute Resolution Practitioner