Provision Act Claims
have been left out of the Will"
If you feel
you have been left out of a Will and believe you may have a claim
you should seek legal advice without delay.
The Family Provision
Act 1982 which will be referred to as the ‘FPA’ came
into force on 1 September 1983. It applies to the estates of anyone
dying on or after that date.
does this law do?
Where the Court
is satisfied certain relations or dependants of the deceased have
been unjustly or unfairly treated by being omitted from a Will or
not adequately provide for in the Will, it can make orders allowing
for adequate provision to be made. The Court can direct an adequate
amount to be paid out of the estate for your proper maintenance,
education or advancement in life.
It is important
to realise you cannot use this law to make a claim simply because
you do not agree with the willmaker’s testamentary wishes.
Applicants must first of all meet the legal definition of an ‘eligible
person’ and then must be able to provide evidence that inadequate
provision has been made for them. If the application is successful
the Court makes an order for provision out of the estate of the
deceased person. It may also specify the entitlements in the estate
that have to bear the burden of the provision.
Who is an ‘eligible person’ to make a FPA application?
husband or wife of the deceased person at the time of the deceased’s
person with whom the deceased was living in a domestic relationship
at the time of death, or
child of the deceased, or, if the deceased person was living
in a domestic relationship at the time of death then a child
of that relationship, or
former wife or husband of the deceased
person who was, at any particular time, wholly or partly dependent
upon the deceased person, and who is a grandchild of the deceased
person or was, at any particular time, a member of a household
of which the deceased person was a member
to relationships include same sex relationships
If you meet
the requirements of an ‘eligible person’ you can apply
irrespective of whether there was a Will (and Probate granted) or
no Will (and Letters of Administration granted) or you were mentioned
in the Will.
The Court also
character and conduct of the applicant before and after the
death of the deceased (this is shown in the recent 2004 case
of Tower v Tower)
contribution made by the eligible person towards the deceased’s
property or welfare
other matter that the court considers important ( this may include
financial means and needs of the applicant)
The costs of
a successful FPA application are usually ordered to be paid out
of the deceased’s estate. Costs, charges and expenses of or
incidental to proceedings under FPA are paid out as the Court thinks
cases for your information:
The New South
Wales Supreme Court case of Rich v Rich  NSWSC 64
involved a FPA claim brought by the deceased’s 3 adult sons.
The applicants were all ‘eligible persons’ and no provision
had been made by the deceased in his Will for them.
made his last Will 20 April 2002 and died 16 September 2002. The
proceedings were commenced in time. The whole estate was left to
the late John Rich’s widow provided she survived him by 30
days. Probate was granted to his widow. The known value of the estate
was small, however the deceased had an interest in his late mother’s
estate which included a house in Mosman.
the FPA claim the Court noted that even though the plaintiffs had
reasonable incomes when these were compared to the substantial assets
of the defendant, a wise and just testator may have given a little
more thought to the terms of his Will than the deceased did. The
Court believed the late John Rich should have taken into account
the possibilities of receiving a benefit from his mother’s
v Little and Price v Little  NSWSC 36 two daughters challenged
the minimal legacies they were to receive according to the terms
of their mother’s Will. The late Genevieve Little died 19
July 2002 aged 88 years. Her last Will was dated 11 March 1997.
The residue of her estate went to a charity, the Foundation for
the National Parks and Wildlife.
The Family Provision
Act claim was successful by both the daughters who met the requirements
of ‘eligible persons’ under the Act. The Court decided
that the deceased had available a substantial amount from which
she could provide for her two daughters and also benefit the charity
she favoured. Both daughters were able to show the deceased had
not made adequate provision for their maintenance education and
advancement in life.
the legacy of $20,000 left to Janette Morton was increased to $350,000
and the legacy of $20,000 left to Susan Price increased to $100,000.
This case also
deals with the issue of FPA claims made outside the statutory time
limit. Applications should be made within 18 months of the date
of death. However there is provision under the FPA which allows
an application to be made notwithstanding it is out of time. In
this case the Court accepted the evidence put forward by Susan Price
that she was unaware of the time limits involved. The Court allowed
the extension of time which enabled her to apply for provision in
addition to her sister.
been made under the Family Provision Act for over 20 years. Often
the Court is required to look at the basis of a person’s claim.
The issue of the basis on which an eligible person may make a claim
is still controversial even after so many years.
The extent of
this controversy can be seen in the recent case of Vigolo v Bostin,
which started in Western Australia and went as far as the High Court
in March 2005.
commenced legal proceedings after his father died and he learnt
that his father had divided the assets equally between his children
except for Gino, his eldest son. Gino did not base his application
upon financial need as he had built up certain wealth. Instead he
claimed that his father had a moral duty to provide for him in his
Will. The Court rejected this claim. Moral duty was not seen as
a defining element behind the legislation. The Court was not satisfied
that the father had failed as at the date of his death to make adequate
provision for Gino’s proper maintenance, education or advancement
If you believe
the requirements of an ‘eligible person’, and
a claim to make because you have been omitted entirely from
a Will, or
a claim based on inadequate provision being left for you in
a Will, or
any other special area of need to put before the Court, then
contact us immediately
for further advice and prompt action.
have made a valid Will. You now believe your Executor is capable
of responsibly administering your Estate and fairly distributing
the assets to your beneficiaries according to your wishes when the
time comes. You believe that this will prevent any dispute over
your Will. Unfortunately this may not be the case. Having a Will
does not mean that there will never be a dispute about your Will.
It is important
to keep your Will up-to-date as circumstances change in your life.
Consider the following scenarios:
left me for a younger man
Tom at 60 is
financially secure, having sold off a successful franchise business
for a handsome profit. However Tom has spent most of his time running
the business and Bianca, his wife of 30 years has left him for her
younger tennis coach.
Tom and Bianca
divorce. Tom makes a new Will after the divorce. He leaves his whole
estate to his only grandchild. He feels he has not been supported
during this difficult time by his two daughters so he omits them
from his new Will.
to move on with his life and learn new computer skills. He attends
training sessions and develops a relationship with Jane, one of
the trainers. They marry a year later. Tom and Jane are involved
in a freak car accident, Jane survives but Tom dies.
Tom’s Will be challenged?
As we know Tom
made a new Will after he and Bianca divorced. However, although
this may have been a valid Will, as soon as he married Jane this
Will was automatically revoked. As far as Jane is aware Tom did
not make a Will in contemplation of their marriage, or after their
So the answer
is no, Tom’s Will cannot be challenged because there is no
valid Will in existence to challenge.
Without a Will
Tom’s estate will be distributed according to the rules of
intestacy. Tom’s children and his second wife, Jane, will
inherit shares of the estates as prescribed by state law. The granddaughter
will not receive anything.
Under the Family
Provision Act 1982 a claim may be made on an estate with or without
a Will in existence. Applicants must meet the definition of ‘eligible
persons’ under the Act. The needs of the applicant are taken
into account by the Court at the time of hearing evidence showing
how the testator left inadequate or no provision out of the estate
for the applicant’s maintenance, education or advancement.
Tom’s granddaughter, 2 adult daughters and/ or his widow,
Jane may obtain legal advice on the merits of making a Family Provision
years roll on
Tom is now 80,
he and Jane are separated (we hope she didn’t take up tennis
as well) and Tom has employed young Bill to do the gardening, drive
him to appointments and attend to his general care. Tom relies more
and more on young Bill as his health falters. He has no contact
with his 2 daughters and his granddaughter lives in Perth.
Tom makes another
Will leaving a life estate to Jane, a legacy of $40,000 to help
his granddaughter clear her HECS debt to the government and the
rest of his estate to young Bill who is always there for him. However
Tom is becoming forgetful.
Tom is admitted to a nursing home. Signs of early dementia are recorded.
Young Bill makes daily visits to him. Tom dies from complications
Will made recently by Tom valid?
the Will is checked and it appears to have been properly signed
by Tom and two independent witnesses. However it raises two important
young Bill exercised any undue influence over Tom, and
Tom had the necessary capacity to make a Will at all.
stands to inherit substantially they may have to prove to the Court
there was no trickery or pressure put on the testator. Testamentary
capacity must be carefully noted at the time of making the Will
if there is any doubt on this point. Statements by examining medical
staff would assist clarify the question of capacity.
to a Will on the grounds of undue influence or lack of mental capacity
on the part of the testator may be made before the Will is presented
for a grant of Probate in the Supreme Court.
In the actual
case of Tonkiss & Anor v Graham & Ors NSWSC891 the
testatrix, Marjorie Thompson, died in 1997 aged 97 years. Her husband,
parents and 7 siblings all predeceased her and she had no children.
Court found that:
the testatrix had some history of delusions (concerning people
getting into her home) before she moved into a nursing home,
there is nothing to show that these delusions impacted on her
testatrix knew and approved of the gift (even though to the
spouse of an attesting witness) and consequently the gift was
A testator must
always make his Will freely. This will not be the case if the testator
was subject to any coercion. This does not have to go so far as
actual bodily harm.
In the very old case of Winton v Winton it was confirmed that the
degree of coercion sufficient to constitute ‘undue influence’
may vary with the circumstances – and in fact could be very
little in the case of an old and feeble testator.
We accept instructions in this area of will disputes from:
makers seeking advice on making their Will ‘dispute-resistant’
Executor of an estate defending a challenge to the Will
who believe a Will:
made by a willmaker (testator or testatrix) lacking mental capacity,
made freely but was made under the undue influence of another
be overturned and wish to discuss the merits of a challenge
to the validity of a Will
you have been diagnosed with dementia you will face legal issues
in particular concerning your legal capacity to make decisions
fact that you have been diagnosed with dementia does not mean
you are incapable of making everyday decisions for instance
concerning money or financial treatment
key point is whether you still have legal capacity to make decisions.
What is legal capacity?
An adult person
has legal capacity to make a decision when he or she can:
in respect of the person’s property or affairs,
Make a decision based on this information after careful consideration
of the consequences, and
Communicate that decision to another person.
can make an assessment?
As lawyers we
may be called upon to make an initial assessment after spending
face to face time with the person. The consulting doctor may also
be called in to support the assessment as to capacity. Determination
can also be made by other authorities such as the courts and guardianship
If a person
diagnosed with dementia is assessed as still having the necessary
legal capacity there should be immediate action taken to receive
instructions and execute the Will.
be given against using over the counter Will kits. To make a valid
Will a person must be able to understand the decisions being made
concerning appointment of executor(s) and passing on of assets.
If a Will kit is used it may open the door to the Will being contested
later on the grounds of mental incapacity. Professional advice should
be sought in the drafting and execution of the Will. This will help
minimise the chance of the Will being challenged on this ground.