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1. What is the Family Provisions Act?

The Family Provisions Act 1972 (WA) provides that, where a person, either under a will or through the laws of intestacy, has been left without adequate provision for their proper maintenance, support, education and advancement in life from the estate of a deceased, that person may apply to the Court for an order that adequate provision be made. The test is not whether the distribution to a person is unfair as this would derogate from the deceased’s freedom of testamentary disposition.

2. Who Can Apply?

The Act provides that any or all of the following people may make an application:

(a) A spouse (including de facto partner);

(b) A former spouse receiving maintenance from the deceased at the time of death;

(c) The deceased’s children (which may include stepchildren and adopted children)

(d) Grandchildren

(e) A parent

If a person eligible to apply is under age or under a disability, a guardian may apply on their behalf.

3. Time to Apply:

You must make an application within 6 months of the Administrator/Executor being appointed, otherwise you will need to satisfy the Court that the justice of the case justifies commencing out of time. Every effort should be made to apply before the 6 months ends to avoid the risk of your application not being heard.

4. What if I do not know what I have been left in a Will?

You will need to apply to the Court for a copy of the grant of probate to the executor or grant of letters of administration with will annexed to the administrator. It can take up to 2 months, from the date of application, for the Court to make a grant to the executor or administrator, and making an application is not usually the first thing people think about when someone dies, so it is best to wait for 2 months before requesting a search of the probate records at the Supreme Court.

5. What if the estate has been Distributed and Would up:

The Court still has the power to hear the application and make provision for the applicant provided that such an order would not be detrimental to a person who has already received assets distributed from the estate in good faith and that person has acted in reliance on having an indefeasible title to those assets.

6. What does “proper maintenance, education and advancement in life” mean?

This means provision for the supply of the necessaries of life, although it also extends to provision over and above a mere sufficiency of means upon which to live. It implies a continuity of pre-existing state of affairs. The phrase advancement in life extends this such that there may be provision for the applicant which enables them to improve their prospects in life.

7. What the Court Considers:

The applicant must establish what their needs are before the Court can determine whether there was adequate provision. Many factors are considered and the circumstances of each case determines the importance. The Courts refer to there being a financial “need” of the applicant and a person having a “moral claim”, which looks at relationship between the deceased and applicant. Sometimes a person has a strong moral claim based on their relationship with the deceased but there is no financial need and another potential applicant has no moral claim but a desperate financial need. The Court will have to examine the circumstances of each case to determine is adequate provision has been made.

The Relationship

A relevant factor will be the nature and totality of the relationship between the deceased and the applicant and other beneficiaries. Factors which are relevant to considering the relationship with the deceased include:

(a) Sacrifices or services the applicant gives to or for the benefit of the deceased;

(b) Contributions to building up the deceased’s estate;

(c) Conduct between the applicant and deceased;

(d) Financial assistance provided by the deceased to the applicant;

(e) The age of the applicant, as generally, the obligation to make provision diminishes as a child gets older, until they approach retirement at which time it becomes greater; and

(f) The size of the estate, in that the larger the estate is, the greater the moral duty to make provision.

The Position of the Applicant and other Beneficiaries:

The Court determines the applicant’s position at the time of death.

The Court will have regard to the applicant and other beneficiaries. The Court will consider the applicant’s financial position and the size and nature of the deceased’s estate. The Court will consider:

(a) the person’s ability to satisfy their own financial requirements from their own resources, including guarding against unforeseen contingencies;

(b) a persons prospects at being able to increase their income or become better off financially in future;

(c) in the circumstances of a spouse, whether they are secure in their own home, though if the house is the only significant asset then the spouse may not retain the property;

(d) the applicant’s standard of living during the deceased’s lifetime and lifestyle choices (ie if the person has chosen not to work to earn an income they should not receive a greater distribution from the estate); and

(e) whether there are any special needs of the applicant.

8. Conclusion

As you can see from the variety of factors the Court may consider, you should seek advice on the strength of your potential claim.