What does 'adequately provided for' mean in a Will dispute?

Published 20 Dec 2018

Author: Garbis Kolokossian

Contesting a Will is never easy. Disputes can arise over how much certain family members deserve from an estate over others. The Succession Act 2006 outlines guidelines for making an application for a family provision, which allows family members to argue that they are owed something from the estate to adequately provide them financial assistance.

When an application is made for compensation under a deceased person's Will, a family member can show that the deceased did not "adequately" provide for them in the estate, related to their personal maintenance, education or advancement, as the Succession Act 2006 states. The Act provides more details to guide courts in making these decisions, as outlined below.

Details about the family provision claim

The family provision claim is made by a relative who believes the deceased treated him or her unfairly in their Will. This applies to situations where someone was left out of the Will completely, or they were included in the Will but believe they weren't given enough compensation.

Only spouses (former or current), partners, children, and dependants can make these family provision claims in Australia. They would have to prove why they have a financial need for more compensation, and thus why they are entitled to something from the estate. The court must find that the need is greater than what they were left in the Will.

These matters only pertain to financial needs.

Considerations by the court

During Will dispute proceedings, some of the things the court will consider are the following factors:

  • The relationship between the deceased person and the applicant.
  • Whether the deceased person had any responsibility or obligation to the applicant.
  • The financial needs, future and current, of the applicant.
  • The size of the estate.
  • The age of the applicant.
  • The character and conduct of the applicant.
  • Whether the applicant has any mental or physical disabilities.
  • Whether the applicant is living with someone else and receiving financial assistance elsewhere.
  • Whether other family members are also making claims to the estate.

Have you been treated unfairly in a Will? You may be eligible to make a family provision claim. Get in touch with our experienced team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers, and we will assess your eligibility and help you through the legal process.

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