Articles

Inadequate Provision under a Will?

5 June 2004

Have you been properly provided for under a relative’s will? If you’re having doubts, come and see us at A W M Dickinson & Son. We can advise you of your entitlements.

Let us explain what happens after a testator - a person who writes a will - dies. In almost every will, someone is appointed to be an executor. This person will carry out the instructions in the will. In order to do this, they must lodge the will and other documents with the Supreme Court of New South Wales. If the Court is satisfied that the will is valid and the documents are in order, it will issue a grant of probate “in common form”.

If you inform us of your concerns before the grant of probate is made, we may be able to lodge a caveat for you. A caveat is a type of warning, entered in the official books of the Court Registry. When it is in place, the Court cannot issue a grant of probate (and so the estate cannot be distributed) without notifying you.

Because there are different types of caveat which apply to particular circumstances, our knowledge is indispensable.

Where there are doubts about the identity of a beneficiary (a recipient under the will), or the testator’s capacity to make the will, understanding of the content of the will or its effect, or was unduly influenced or under duress, you are entitled to lodge a particular caveat.

Caveats can be also sought where the will may have been executed improperly - it could have been forged, wrongly signed or sealed, or amended after it was signed.

In addition, there is a type of caveat that applies to informal documents, or ones that have not been properly signed or witnessed, as Courts have the power to grant such documents validity as wills under certain circumstances.

If a grant of probate has been made, you can apply to the Supreme Court to revoke it. This may occur if the grant was wrongly made, made to the wrong person, or is not effective. However, the grounds are limited, and courts are reluctant to issue revocations. Because of these difficulties, you should seek our expert advice if contemplating such action.

Raising these concerns can result in a Court declaring the will to be invalid. If this happens, the assets will be distributed as if no will existed, which may affect the share that you will receive.

But you do not need to contest the will on grounds of irregularity alone - unfair distribution of assets is a legitimate basis for a challenge. We can help you bring a claim under the Family Provisions Act 1982 (FPA), if you are eligible to do so.

The FPA covers people closely associated with the deceased, who have not received an adequate share of assets from the estate. Firstly, the Court will consider whether the claimant has not been sufficiently provided for in the will. If this is found to be the case, the court can order that provision is made out of the estate for their “maintenance, education, and advancement in life” - at the expense of the other beneficiaries.

Only certain people are entitled to make a claim under the FPA. These are the deceased’s spouse, which covers a de facto spouse or a former spouse; children, which can include a foster child or one born outside a marriage; and grandchildren.

Claims may also be brought any person who, at the time of death, was wholly or partially dependent upon the deceased and at any time was a member of the deceased’s household, which can include siblings, parents or even unrelated dependants.

As well, the FPA extends to people who were living in a “domestic relationship” with the deceased, which applies to partners who would not qualify as a de facto spouse. This may seem broad, but the relationship must meet the definition contained in the Property (Relationships) Act 1984.

If this seems confusing, we will be able to inform you whether you are eligible to make a claim under the FPA.

But you should be aware that the Court has discretion to divide the estate as it sees fit. Even if you are found to be eligible, it does not mean that you will receive a greater share of the assets. Among other things, the Court may consider your financial status, your relationship with the deceased, their responsibility to provide for you, and the size of the estate. Although circumstances vary, we will be able to give you a clearer assessment of your chances.

If you are contemplating legal action, consult A W M Dickinson & Son immediately. Firstly, there are time limitations - applications under the FPA must be lodged within 18 months of the date that the deceased died. And then there are the complications that can result when assets have already been distributed to other beneficiaries - and possibly diminished or even lost by them.

If they are improper or unfair, wills can be overturned. We will help you to claim your rightful share.

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The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult a lawyer for individual advice regarding your own situation.