What Property Can Be Used in a Family Provision Order?

Published 01 Dec 2015

Author: Garbis Kolokossian

Here at GMP Contesting a Will Lawyers, we have hundreds of client’s contact us weekly with various questions specifically relating to, how to contest a will, contesting wills and will disputes. Once we have provided some preliminary advice on these fundamental issues, our client’s become concerned with what property can be used in a Family Provision Order when contesting a will

Whilst the answer is simple, it does not mean that it is strait forward. The first thing the Court will be required to consider is “what does the estate comprise of?” This is a common question that your lawyer will ask you. It is fundamental to answering the question of what property can be used by the Court when making a family provision order. 

In order to determine the “value” of an estate one will need to carefully look at what assets the deceased held at the time of death. You will find that the Executor will prepare an Affidavit when making an application for a grant of probate articulating the Assets held by the deceased person and the liabilities.

ike all people, it is likely that the deceased person had debts prior to passing. It would come as no shock to anyone that those debts will need to be repaid out of the “estate” prior to any gifts being made or orders for provision being made. 

When contesting the Will, the executor will be required to employ the services of a lawyer for advice and protection. The costs incurred by the executor will also be the costs of the estate which will have to be reimbursed before any such family provision order can be made. It is for this reason that we at GMP Contesting a Will Lawyers progress matters quickly to minimise the overall cost on the estate and our client’s. 

If there isn’t sufficient money in the bank to pay these debts and ongoing expenses the executor will be required to sell the assets to generate sufficient funds to pay debts. At the time of making a family provision order the court considers how much money is in the estate after the payment of all current and anticipated liabilities. It is from this pool of assets that the court can consider making an order for provision out of an estate. 

It is interesting to note that the relevant legislation that governs this area of law expands on this topic and further states the following:

  • “A family provision order may not be made in relation to property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of section 93, except as provided by subsection (5). “
  • “Where property of the estate of a deceased person is held by the legal representative of that estate as trustee for a person or for a charitable or other purpose, the property is to be treated, for the purposes of this Chapter, as not having been distributed unless it is vested in interest in that person or for that purpose.”
  • “A family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3. “

If you wish to discuss how to contest a will, obtain advice on will disputes generally, or any other questions on this topic please contact GMP Contesting a Will Lawyers on an obligation free basis and we will be more than happy to answer any of your questions. 

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