"I 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.

What 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?

	The husband or wife of the deceased person at the time of the deceased’s death, or
	A person with whom the deceased was living in a domestic relationship at the time of death, or
	A 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
	A former wife or husband of the deceased
	A 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
	Parties 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 considers:

	The 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)
	Any contribution made by the eligible person towards the deceased’s property or welfare
	Any other matter that the court considers important ( this may include financial means and needs of the applicant)

Costs:

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 fit.

Recent cases for your information:

The New South Wales Supreme Court case of Rich v Rich [2005] 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.

The deceased 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.

In allowing 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 estate.

In Morton v Little and Price v Little [2005] 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.

Accordingly, 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.

Claims have 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.

Gino Vigolo 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 in life.

If you believe you may

	meet the requirements of an ‘eligible person’, and
	have a claim to make because you have been omitted entirely from a Will, or
	have a claim based on inadequate provision being left for you in a Will, or
	have any other special area of need to put before the Court, then

contact us immediately for further advice and prompt action.

You 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:

She 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.

Tom decides 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.

Can 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 marriage.

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 Act claim.

The 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.

Shortly after Tom is admitted to a nursing home. Signs of early dementia are recorded. Young Bill makes daily visits to him. Tom dies from complications with. pneumonia.

Is this Will made recently by Tom valid?

Execution of the Will is checked and it appears to have been properly signed by Tom and two independent witnesses. However it raises two important questions:

	whether young Bill exercised any undue influence over Tom, and
	whether Tom had the necessary capacity to make a Will at all.

Where someone 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.

Any challenge 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 [2002]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.

The Court found that:

	although 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 testamentary capacity.
	The testatrix knew and approved of the gift (even though to the spouse of an attesting witness) and consequently the gift was not void.

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:

1.	Will makers seeking advice on making their Will ‘dispute-resistant’
2.	The Executor of an estate defending a challenge to the Will
3.	Clients who believe a Will:
	has been made by a willmaker (testator or testatrix) lacking mental capacity, or
	was not made freely but was made under the undue influence of another person
	may possibly be overturned and wish to discuss the merits of a challenge to the validity of a Will

	If you have been diagnosed with dementia you will face legal issues in particular concerning your legal capacity to make decisions
	The 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
	The 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:

Understand information 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.

Who 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 tribunal.

Making the Will

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.

Caution must 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.