If I leave someone a dollar, can they still contest my Will?10-10-2023 | Resource | Marco Manna
In estate matters, the concept of "proper provision" refers to the legal obligation of a deceased person to make adequate provision in their Will for the maintenance, education, and advancement in life of certain eligible individuals.
If a deceased person fails to make such provision, eligible individuals can make a claim for family provision under the Family Provision Act in their respective state or territory. These claims allow individuals to challenge the distribution of a deceased person's estate, even when they have been left a nominal amount in the Will.
Leaving a nominal bequest like one dollar might be seen by the court as an intentional exclusion or a symbolic gesture, and it could potentially strengthen the case for the other party challenging the Will. However, the outcome of such challenges will depend on the specific facts and circumstances of the case, including the relationship between the parties, the size of the estate, and the claimant's financial situation.
What would the Court look for when determining "Proper Provision"?
1. Only eligible people can make a claim.
Not everyone can make a family provision claim. Eligible claimants typically include a deceased person's spouse, de facto partner, children (including adult children), and in some cases, dependent stepchildren and other dependents. The precise categories of eligible claimants can differ between states and territories.
2. Does the Will provide enough for maintenance, education, and advancement?
The claimant must demonstrate that the Will of the deceased person did not make adequate provision for their proper maintenance, education, or advancement in life. This means that the claimant has to prove that the financial support, as provided for in the Will, may not be sufficient to meet their reasonable needs in the future.
3. Subjective and Objective Considerations.
Courts will consider both subjective and objective factors when assessing whether proper provision has been made. Subjective factors include the claimant's financial circumstances, personal needs, and the nature of their relationship with the deceased. Objective factors may include the size of the estate, the financial obligations of the deceased, and the competing claims of other beneficiaries.
4. Balancing Interests
The court's primary objective is to achieve a fair and equitable outcome that balances the interests of all parties involved. This means that a successful family provision claim does not necessarily result in an equal distribution of the estate but rather an adjustment that addresses the claimant's needs and the other beneficiaries' entitlements.
5. Time Limits for Claims.
There are usually time limits for filing family provision claims, which vary by jurisdiction. Typically, claims must be made within a specific timeframe, often within 12 months of the date of death. Failing to meet these deadlines can result in the claim being barred.
6. Is there Sufficient Evidence to Support the Claim?
Family provision claims involve complex legal processes and often require the involvement of legal representation. Claimants must present evidence to support their claim, demonstrating their financial needs and the inadequacy of the provision made in the Will.
If you are considering leaving someone a nominal bequest or have concerns about your Will being contested, it is advisable to consult with an experienced estate planning lawyer in Australia. They can provide guidance on how to structure your Will to minimize the risk of challenges and ensure that your wishes are carried out as intended. For more information, contact the Wills and Estates team at Lamrocks Solicitors on Ph: 02 4731 5688.