Challenging a Will under Family Provision

Family Provision legislation and you

There are many reasons why a person may want to challenge a Will. Sometimes the Will may not have been signed or witnessed properly. Sometimes there’s doubts as to the interpretation or content of the Will. Sometimes there is a concern that the Will does not provide adequately for the testator’s dependents.

The Succession Act allows for certain types of people to challenge a Will if they have not been provided for adequately under the Will. There are six categories of people who can make a claim:

  1. A spouse of the deceased
  2. A defacto spouse of the deceased
  3. A child of the deceased
  4. A former spouse of the deceased
  5. A person who was wholly or partly dependent on the deceased, and was a member of the household at any one time (such as a grandchild or a parent)
  6. A person who was living with the deceased in a close personal relationship.

If a person makes a claim in this manner they will have to justify what they are entitled to. These may be for the maintenance, education, or advancement in life of the claimant. The court may also consider the nature of the relationship and how long it existed, the financial circumstances of the claimant, the testamentary intentions of the deceased, or if any other person can support the applicant.

An application for a family provision order under the Succession Act can be a complex and costly affair. A good Will must take these matters into consideration and implement strategies to limit challenges to the Will.

If you are a person seeking entitlements under the Will, careful consideration must be made before starting down the path towards challenging a Will.